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ROOM 112 


10:32 A.M. 


FEB 8 - 1996 
s <■> 


































ROOM 112 


10:32 A.M. 

Reported by 

Evelyn J. Mizak 
Shorthand Reporter 


FEB 8 - 1996 I 

. -i 


3 1223 03273 6473 










GREG SCHMIDT, Executive Officer 

PAT WEBB, Committee Secretary 

RICK ROLLENS, Consultant on Bill Referrals 

NANCY MICHEL, Consultant on Governor's Appointments 


Department of Consumer Affairs 



Occupational Safety and Health Appeals Board 


State Water Resources Control Board 


California Transportation Commission 


State Board of Forestry and Fire Protection 

Board of Supervisors 
Mendocino County 

Board of Supervisors 
Mendocino County 

Mendocino County 

4 49383 SFPL: ECONO JRS 
75 SFPL 06/06/03 


Board of Supervisors 
Mendocino County 

JEFF ROMM, Professor 

University of California at Berkeley 

Sierra Club 

ZEKE GRADER, Executive Director 

Pacific Coast Federation of Fishermen's Assocations 


State Board of Forestry and Fire Protection 



Proceedings 1 

Governor's Appointees: 


Department of Consumer Affairs 1 

Background and Experience 1 

Statement in Support by SENATOR DAN BOATWRIGHT 6 

Questions by SENATOR AYALA re: 

Recommendations to Improve Sunset and 

Review Process 7 

Adequacy of Current Budget 8 

Status of Cemetery Board and Board of 

Funeral Directors 9 

Motion to Confirm 10 

Committee Action 11 


Occupational Safety and Health Appeals Board 11 

Background and Experience 11 

Questions by SENATOR PETRIS re: 

Federal Proposals to Reduce Funding 

for OSHA 14 

Federal Proposals to Cut Penalties on 

Safety Violations 14 

Concern that Federal Cuts Will Limit 

Cal-OSHA • s Ability 15 

Current Staffing 15 

Definition of Annuitant 16 

Questions by SENATOR AYALA re: 

Methyl Bromide Special Session 16 

Board's Experience with Methyl Bromide 

Issues in Past 17 

Motion to Confirm 17 

Committee Action 18 


State Water Resources Control Board 18 

Background and Experience 18 

Questions by CHAIRMAN LOCKYER re: 

Recommendations to Improve Board and Its 
Operations 20 

Need for Adequate Infrastructure 21 

Questions by SENATOR PETRIS re: 

Possibility of Slowing Growth in California 
Because of Present Limited Resources 24 

Conservation Efforts .' 27 

Need for Specific State Goal in Conservation . . 28 

Questions by SENATOR AYALA re: 

Need to Create Quality Standards for the 

Bay and Source of Additional Fresh Water 29 

Court's Overturning of Board's Inland 

Surface Waters Plan and Bays and Estuaries 

Plan 31 

Need for Standards in Bay 32 

Water Bankruptcy in California during 

Normal Rainy Seasons 33 

Questions by SENATOR LEWIS re: 

Reasons for Price Disparity in Cost of 

Water throughout State of California 34 

Pricing Mechanism 35 

Possibility that Underpricing of Water 

Supports Over Consumption 3 6 

Motion to Confirm 37 

Committee Action 38 


California Transportation Commission 38 

Opening Statement 38 


1 Questions by CHAIRMAN LOCKYER re: 

2 Problems that Need to be Addressed 3 8 

3 Suggestions for Change in Commission's 

Make Up 3 9 




Questions by SENATOR PETRIS re: 

Capital Corridor and Other Rail Services 40 

Affect of Loss of Federal Money 44 

Questions by SENATOR AYALA re: 

Shortfall in STIP 44 

Motion to Confirm 46 

Committee Action 47 

Blocking of Funding by CTC for Capital 

Corridor Service 41 

Reasons for Delay and Current Status 42 

9 Need for More Freguent Service and 

Rider-Friendly Service 43 




Bond Issues Versus Gasoline Sales Tax 
14 to Raise Revenue for Seismic Retrofitting 

of Bridges 45 





18 State Board of Forestry and Fire Protection 47 

19 Background and Experience 47 

20 Witnesses in Opposition: 

21 LIZ HENRY, Chair 
Board of Supervisors 

22 Mendocino County 51 

23 Questions by SENATOR LEWIS re: 

24 Regulations which Imposed on 

Private Land Owners 57 




Definition of Two Percent Rule 58 

Questions to MR. NELSON by SENATOR LEWIS re: 

Conscience Vote on Mendocino Plan 59 


Questions to MR. NELSON by SENATOR PETRIS re: 

Public's Lack of Access to Board Members 60 

Further Statements by MS. HENRY 61 

Questions by SENATOR AYALA re: 

Reasons for Mendocino Plan 62 

Ability of Counties to Overrule 

State Board 63 

Response by MR. NELSON 64 


Board of Supervisors 

Mendocino County 66 

Questions by SENATOR LEWIS re: 

Percentage of Privately Owned Land 

in Mendocino County 69 

Possibility of Increased Employment 

Had Mendocino Rule Been Adopted 70 


Mendocino County 71 

Questions by CHAIRMAN LOCKYER re: 

Disregard for Local Recommendation 78 

Evidence of Nominee's Opposition to 
Forest Practices Act 78 

Response by MR. NELSON 78 

Questions to MR. NELSON by CHAIRMAN LOCKYER re: 

Need for Harvest Plan that Defines Amount 80 

Objection to Two Percent Rule 8 


Board of Supervisors 

Mendocino County 81 

Questions by CHAIRMAN LOCKYER re: 

Distinction between MR. NELSON 

and MR. ROGERS 84 


Questions by SENATOR LEWIS re: 

Support for Confirmation of 


Questions by SENATOR AYALA re: 

Definition of Public Trust Interest .... 85 

Response by MR. NELSON 85 

Questions to MR. NELSON by CHAIRMAN LOCKYER re: 

Comments on Philosophy of Attempting to 

Maintain Mixed Forest 85 

Retrospectiveness of Restocking Forests 86 

Overharvesting in Humboldt 87 

Contract between L.P. and Home Depot 89 

Questions by SENATOR PETRIS re: 

Definition of Siliculturist 89 

JEFF ROMM, Professor 

University of California at Berkeley 89 

Questions by CHAIRMAN LOCKYER re: 

Duty of Industry Representative on 

Board 92 

Questions by SENATOR LEWIS re: 

Was Vote against Mendocino Plan 

Violative of the Act or State Law 94 

Response by MR. NELSON 96 

Questions by CHAIRMAN LOCKYER re: 

Disagreement with Data that Suggests the 

Rate of Depletion is Significant 97 

Question of DR. ROMM by CHAIRMAN LOCKYER re: 

Trend of Depletion 97 

Questions by SENATOR AYALA re: 

Fairness in Representation to All Sized 
Companies 98 



Sierra Club 99 

ZEKE GRADER, Executive Director 

Pacific Coast Federation of Fishermen's 

Associations 103 

Motion to Confirm 118 

Committee Action 118 


State Board of Forestry and Fire Prevention 109 

Background and Experience 109 

Questions by CHAIRMAN LOCKYER re: 

Observations or Reactions to Previous 

Comments Ill 

Deteriorating Fisheries a Result of 
i: On-shore Activities 113 

Involvement in Effort to Compromise 115 

14 Business Nature of Pacific Earth Resources . . . 115 

Statement of Intention by CHAIRMAN LOCKYER 116 

16 Motion to Confirm 117 

17 Committee Action 117 

Termination of Proceedings 118 

Certificate of Reporter 119 


--00O00 — 
CHAIRMAN LOCKYER: Let's start with Miss Berte. 
Good morning. Do you have a comment you'd like to begin 


MS. BERTE: I would, if you wouldn't mind. 


MS. BERTE: Mr. Chairman and Members, thank you for this 
opportunity to address you. 

Since January of last year, I've enjoyed the challenge of 
serving the people of California as Director of Department of 
Consumer Affairs. The Department is principally an occupational 
regulatory body, licensing more than two million California 
professionals and businesses in 180 occupations through the 48 
programs that are within the DCA umbrella. 

I bring to this position 20 years of experience in 
management, involvement in regulated occupations, development of 
public policy, and I think most important, a commitment to 
balancing the needs consumers and businesses. 

I'm a California native and have a deep appreciation for 
the uniqueness of our state and its consumers. 

DCA's mission is quite simple, to be the best consumer 
protection agency in existence. We seek a competitive and fair 
market characterized by informed consumers, quality services, and 
choice of products. 

That sounds nice, but what is important is how we 
implement those responsibilities. For the past five years, this 
administration has been instrumental in putting the consumer first 

in rnnsnmpr af fai rs. Thp nhi lnsnnhv T hrinrr fn thp inh mpans 

goal. That means balancing needs of consumers with needs of 
regulated industries and professions. In other words, not using a 
pound of cure for an ounce of a problem. We seek very hard to 
identify risk for consumer harm, both physical and financial, and 
target resources to those priorities. 

We think of the Department as being a tool kit containing 
a variety of tools to address different flaws in the marketplace. 
The judgement task for management is to select the most 
appropriate tool for a given problem. The broad categories of 
tools are licensing, standards and examinations prior to entrance 
into a professoin, complaint mediation, enforcement, and education 
and information. This last tool, education and information, is 
very often under utilized as' we focus on our traditional role as a 
licensing and enforcement agency. A lack of information leaves 
consumers less able to protect themselves, and is more likely to 
result in us having to use more costly enforcement 

Targeting information is a greater priority as I am the 
Director. Targeted or smart enforcement efforts will also be 
emphasized. Our method of doing this is researching the markets. 
DCA has developed an experimental process called the market 
condition assessment. I say experimental because this has not 
been done before to our knowledge, and we have no base line from 
which to measure improvement for consumers in the marketplace. We 
believe that if we are to be effective rather than irrelevant in 

the consumer protection business, we need to know where the harm 
is occurring. 

I've used the word target several times. It is one that 
drives our efforts. Resources are always scarce, budgets are cut. 
It's our goal to be as effective as possible while limiting costs. 
We have found that particularly enforcement, both consumers and 
industries benefit from a targeted strategy. We spend the largest 
share of our enforcement dollars going after negligent, 
incompetent, fraudulent practitioners. 

In most markets, a small number of people cause the 
greatest amount of harm. The bad actors undermine and compete 
unfairly with the vast majority of businesses and professionals 
who are doing a good job for their customers. Targeting 
enforcement on those who do the harm, and unburdening the rest of 
the industry, makes good economic and competitive sense. 

One of the major priorities for the Department over the 
next several years will be the sunset review process established 
by Senator McCorquodale ' s landmark 1994 legislation, SB 2036. 
This statute requires sunset review in the next three years for 
all boards within the DCA. Senator Ayala's Joint Legislative 
Sunset Review Committee has begun this process, with hearings 
recently completed on the first group of boards. 

DCA's approach will be to carefully review the 
committee's findings, seek other appropriate input, and from a 
fundamental standpoint, review the necessity of each regulatory 
program. We will be considering the risks consumers face, the 
degree of risk, whether the structure and governance of the 
current regulatory program appropriately addresses those market 

1 flaws. 

2 We're looking forward to receiving Senator Ayala's 
committee report and will incorporate that in our findings to the 

4 Legislature. 

One of the great challenges in managing the Department of 
Consumer Affairs is the structural autonomy of many of the 
regulatory programs within DCA. We worked hard, and I commit to 
continue working hard, to work closely with our boards and 
committees, with each unit within the Department to produce more 

10 cohesive and coordinated consumer protection agency. 

11 I've described our regulatory philosophy, and I will skip 
comments on any other specific programs; however I would like to 

13 mention one other initiative that is a very high priority for DCA 
leadership: performance based budgeting. DCA has been in this 

15 pilot project since it was created by the Legislature two years 

16 ago. We view performance based budgeting responsiveness by 

17 Department's staff at all levels. This is about doing our job 

18 better, about squeezing more performance out of the same staff and 

19 the same budget. 

20 As a participant in the pilot performance budgeting 

21 project, DCA has reorganized its functions along -- its processes 
along functional lines, established and are still always 
continuing to establish an improvement culture within the 

24 Department. We also want to be measured by our results, not by 

25 our inputs or processes. 

26 This change in focus affects every aspect of our 

27 activities and how we conduct them. Everything from the very 
macro issue of the condition of consumers in the marketplace, to 

1 the simple processes is how we move work through the 

2 organization. 

3 j The performance based budgeting project has forced us to 

4 measure our actions in terms of results. The Smog Check Two 

5 program is a good example. We're seeking to shift from managing a 

6 | program that tests cars, to one that in fact results in clean 

7 ! air. The objective of the program is not to test for pollutants, 

8 but rather to reduce vehicle emissions. Once again, targeting is 

9 I the key. The program is structured to identify those cars causing 

10 most of the pollution and make sure that they are repaired so that 

11 they drive clean. 

12 Establishing a customer service attitude has been a long 

13 process. Being responsive to consumers is the cornerstone of that 

14 i effort. In 1994, for example, the Department established a 

15 centralized 800 toll-free number for consumer calls, complaints, 

16 and referrals. Based on the volume being handled by the various 

17 I programs at that time, we assumed that the volume for that line 

18 i would be 400,000 calls a year. We are already well on our way to 

19 receiving a million calls this year, which is a management 

20 challenge in itself, and we take calls in more than one hundred 

21 languages. 

22 We believe this is a measure of the need consumers have 

23 for information and for answers, and it certainly is clear that 

24 once we make ourselves available and responsive, they will use 

25 that service. We will, of course, commit and continue our efforts 

26 in that area. 

27 Thank you for this opportunity to express my views and 

28 comments. I look forward to answering any questions you may have. 


CHAIRMAN LOCKYER: Senator Boatwright, I believe, has a 
2 statement. 

SENATOR BOATWRIGHT: Yes. Mr Chairman and Members, I 
appear in support of the confirmation of the Director of Consumer 
Affairs. I'm never sure whether it's Ms. or Mrs. I know she's 
married, so Ms. Berte. 

But I've worked under several directors now, and I've had 
oversight of the Department of Consumer Affairs. I think I can 
9 say, and I think the people on the various committees — Budget 
Committee, and the Sunset Review Committee that Senator Ayala 

11 chairs, and the Business and Professions Committee, all of which 

12 have some oversight and budget control over the Department of 
Consumer Affairs -- that Ms. Berte has been, of the many 

14 directors, and there's been a lot of them, the most outstanding. 

15 She has really, I think, tried to be innovative and to do the job 

16 that's supposed to be done, "and that is to protect the consumers 

17 of the State of California. 

18 And I think she's been outstanding with respect to the 

19 Cemetery and Funeral Boards. As you know, we've had for years 
problems with those boards and the misuse of the trust funds. And 

21 now those two boards are under the control of the Department of 

22 Consumer Affairs. 

23 The Department's investigative arm has really, I think, 

24 done a good job, and they're working with the local district 
attorneys and grand juries. Indictments will follow. The trust 

26 funds have been misused; they've been misappropriated. 

21 It takes a lot of courage to do this. I know personally, 

28 and I was there, that political pressure has been brought against 

her to do things that are basically illegal. She has refused 
Legislators' requests in my presence to do things that are 
illegal. That takes some courage to do that, just to stand up for 
what you really know is right. 

So, I'm here today to tell you that with respect to the 
important things that are important to me, and that is to protect 
the consumers of the State of California, she's done an 
outstanding job. And I think she'll continue to do that. 

So I would urge her confirmation by this body and the 
entire Senate. 

CHAIRMAN LOCKYER: Thank you, Senator Boatwright. 
Senator Ayala. 

SENATOR AYALA: Senator Boatwright mentioned the Joint 
Legislative Committee to Review Boards and Commissions. 

We went through a series of them a couple months ago. 
What was your impression? How can we improve that process? 

MS. BERTE : We spent three days in those hearings, 
Senator . 

It's a difficult task to review a regulatory program 
that's been in existence in California, for some of them fifty 
years, in a two-hour time period. It's going to be difficult even 
for us to do our internal review given time lines outlined in the 
statute . 

We received extensive written comments and documentation 
from each of the boards with their specific recommendations. I 
think our time for testimony from other groups got squeezed. 

I think you and I should work on how we receive a greater 
volume and opportunity of testimony from both industry groups and 

consumer groups who would have something to say about the 
structure. In particular with sunset review, the question at 
issue is the governance structure of the autonymous boards. 

4 We are holding more meetings now to gather input. It's 

just hard. There's a tremendous amount to look at where you have 

6 a program with eleven categories of licensees, and tens and in 
some cases hundreds of thousands of Californians licensed by a 
board affecting everyone. So, the time frames are difficult. 

9 SENATOR AYALA: We're going to have another series of 

these hearings this coming year, and I'd like to get your input as 

11 to how we can streamline this process so it wouldn't take so much 

12 time as it did. 

13 MS. BERT: I think we learned a lot from the first series 

14 of hearings, and that's helpful to us in tutoring us, I think, for 

15 the follow-up hearings. 

16 SENATOR AYALA: Some of these boards and commissions are 
going to be phased out if we don't introduce legislation to 

18 continue them and will come under your jurisdiction. 

19 Will you be able to handle it with the current budgets, 
or are you going to need additional personnel to do that? 

21 MS. BERTE: I assume it depends on the board. 

22 In most cases, if we were responsible for taking over a 
program, as we've done for Cemetery and Funeral Boards, we would 

24 attempt to live within the same means that the board has been 
living in, and target, again, prioritize and target those 

26 resources. 

27 I think we would conduct an evaluation of how board's 

28 resources are being used, and how we might deploy them more 


1 effectively, I think, would be first question and first analysis 

2 we would do. 

3 The transition for Cemetery Board was a very wrenching 

4 one. It happened very suddenly in basically a one-day period. 

5 For the Funeral Board, we at least had a 90-day opportunity to 

6 plan the transition to do work with both our staff and their 

7 staff. It's been much smoother, and it's created for us a model 

8 for how we would bring aboard in. 

9 i I don't presume that we necessarily absorb them all 

10 totally into the Department. I think there may be separate 

11 models, depending on size of the board, what their resources and 

12 i what their challenges are. 

13 What the sunset legislation does is, if the Legislature 

14 chooses not to act, it eliminates only the board not the program. 

15 Then it forces the Department to then take over direct policy and 

16 I management control of the regulatory program. 

17 We want to ask the broader question, which is, not only 

18 the governance structure of autonymous board, but the actual 

19 regulatory program and various components. 

20 Within the direct programs of the Department, we're 

21 looking at eliminating portions of certain bureaus and keeping 

22 other things, based on changes in the marketplace and the needs of 

23 consumers. So, we want to make that a very thorough evaluation. 

24 SENATOR AYALA: Senator Boatwright also mentioned the 

25 Cemetery Board and the Board of Funeral Directors, and so forth. 

26 What is status of that? I know it's under your control 

27 now. Where are we with that? 

28 MS. BERTE: We have completed a full transition for both 


of those boards and all of their functions into the Department. 

We really only had absolute statutory authority to take 
over all of the jurisdiction responsibilities on January 1, 
although under a memorandum we took over the Cemetery Board in 
early October. We have fit all their responsibilities into our 
functional divisions for licensing, enforcement, mediation, 
consumer complaints. No transition is simple, but I think we've 
achieved it fairly smoothly, given the crisis particularly in the 
cemetery industry. 

I think the important thing there is, we're going to be 
enormously aggressive in enforcement in the cemetery arena. Just 
a week ago, we did our first arrest. The gentleman who had stolen 
$600-and-some thousand dollars from a trust fund of a cemetery in 
Long Beach was arraigned this week in Los Angeles. We're pleased 
to be moving forward quickly with some of those. I think that 
kind of activity will have a deterrent effect. Slow enforcement 
allows people to believe there's no enforcement. So, that'll be 
one of our objectives. 

SENATOR AYALA: Thank you. 

MS. BERTE: Thank you, Senator. 

CHAIRMAN LOCKYER: Are there other questions from 
Members? I'll note that there's no opposition reflected in our 
file, and that that may be a sufficient reason, if there's no 
opposition present that would wish to add to the record, for us to 
entertain a motion on the matter. 

SENATOR BEVERLY: Move we recommend confirmation. 

CHAIRMAN LOCKYER: We have a motion to recommend 
confirmation. Please call the roll. 


SECRETARY WEBB: Senator Ayala. 


SECRETARY WEBB: Ayala aye. Senator Lewis. 


SECRETARY WEBB: Lewis aye. Senator Petris. 


SECRETARY WEBB: Petris aye. Senator Beverly. 


SECRETARY WEBB: Beverly aye. Senator Lockyer. 


SECRETARY WEBB: Lockyer aye. Five to zero. 

MS. BERTE : Thank you, thank you very much. 

CHAIRMAN LOCKYER: Mr. Carver is next, a member of OSHA. 
Good morning, sir. 

MR. CARVER: Good morning. Seems like I was here a 
couple weeks ago. It's been about a year. 

CHAIRMAN LOCKYER: Do you want to start by adding 

MR. CARVER: Yes, sir, if I may. I believe I've given 
most of you, except Mr. Schmidt, my resume and my opening 
statements. I think you all have that. 

Mr. Chairman and Members, I thank you for giving me the 
opportunity to come before you today and ask that you recommend 
the full Senate to confirm my appointment as the labor member to 
the OSHA Appeals Board. 

There are three board members. I was appointed to the 
board in 1993 and confirmed by the Senate Rules Committee on 
January 4th, 1995 to serve the remaining one-year term vacated by 


the previous labor member. 

Elaine Donaldson, who is here today and who served as 
Chairman of the board since 1984, represented management until her 
retirement in December, 1995. Mrs. Donaldson has accepted a 
position, so she's not really retired, as a board member of the 
Pacific Stock Exchange. 

The other board member who represents the public sector 
is Bill Duplissea. I'm sure most of you know Bill. I have been a 
member of the International Association of Machinists and 
Aerospace Workers Union since 1962. Subsequent to holding local 
union offices and positions, I was elected in 1986 as president 
one of the largest districts, District 727 in Southern 
California . 

In 1987, I was elected President of the California 
Conference of Machinists and Aerospace Workers, AFL-CIO for the 
State of California, which included all Machinist Union members 
within the state, which included about 80,000 members. 

While serving as President of District 727 and President 
of the California Conference of Machinists and Aerospace Workers, 
AFL-CIO, I organized joint labor and company health and safety 
programs . 

Health and safety issues are very important to me. When 
my five siblings and I were youngsters in Texas and New Mexico, my 
parents took us out of school to pick cotton, pull bloom corn, 
harvest wheat, and perform other farm labor work. During those 
days, know one really considered the health and safety of the farm 
labor workers or anyone else. 

I understand how important health and safety issues are 


for those who toil in the fields of California; how important it 
is to have clean and ample toilet facilities, and how important it 
is to maintain dignity while performing work that most people 
refuse to do. 

Our job is to ensure that not only the farm laborers, but 
all working men and women in California are provided with a 
healthy and safe work environment. 

When Cal-OSHA was eliminated in 1987, the Machinists 
Union supported the initiative, Proposition 97 that California 
voters passed, reinstating Cal-OSHA in 1988. Thanks to the people 
California and the State Legislature, we have the best health and 
safety program in the world. 

During time Cal-OSHA was eliminated, I worked with 
fed-OSHA. I can honestly state that California has a superior 
record over federal OSHA in regulating health and safety issues. 

California serves as a health and safety model for other 
states. I wish to continue being a part of the California 
Occupational Safety and Health Appeals Board. Your support is 

In conclusion, I would like to thank Ms. Michel. You've 
been a great help to me, and very nice lady. I appreciate her 
help and support, and her staff for their kindness. 

And I also wish to thank the Senate Rules Committee for 
your support last time, and ask that you can recommend my 

I'm open for any questions. 

CHAIRMAN LOCKYER: I note also there is no opposition 
reflected in the record. 


Let me ask if there is anyone present who would wish to 
so urge. If not, ask if there are questions from Members? 
Senator Petris. 

SENATOR PETRIS: I'm looking at this background 
information regarding legislation pending in the Congress. 

There's another attack on OSHA to weaken it by reducing 
the funding by fifteen percent, which in turn reduces funding for 
Cal-OSHA. And there's other legislation that would change our 
whole roll from enforcement to consultation. 

Are you familiar with those proposals. 

MR. CARVER: Not totally, but I'm a little familiar with 
it, yes. 

SENATOR PETRIS: What's your view of it so far? 

MR. CARVER: Well, of course I think that we shouldn't 
strip OSHA of their ability to enforce the safety and health laws 
that we have on our books. -I think it's wrong to cut it. I 
disagree with the cuts, but we don't control that, and we have to 
accept the cuts, and doing so, we'll do the best we can, perform 
our duties. 

SENATOR PETRIS: They're also proposing to cut the 
penalties on safety violations? 

MR. CARVER: Well, it depends. 

SENATOR PETRIS: How do you figure that? 

MR. CARVER: I don't think they should cut the 
penalties. As you know -- I'm trying not to say anything you 
don't know -- but the Appeals Board is a separate entity from 
Cal-OSHA itself, so I don't know how exactly we're going to be 
affected with those cuts. I know the Cal-OSHA program will be 


affected, and I'm sure we will to a small degree. 

But I think to cut OSHA Funds in any way would be wrong. 
I think we've come a long way in California and the federal 
government in supporting workers' health and safety programs, and 
I'd like to see that continue. 

SENATOR PETRIS: I'm familiar with the record and the 
fact, as you pointed out, we have probably the best in the 

But I'm concerned about these acts by Congress which 
would limit your ability to do what the statute requires you to 
do . 

MR. CARVER: I don't think it's going to limit our 
ability, just we're going to have to work harder. 

SENATOR PETRIS: You'll have less staff? 

MR. CARVER: Well, we can have less staff and -- 

SENATOR PETRIS: You don't have adequate staff 

MR. CARVER: No, we don't. 

SENATOR PETRIS: How many inspectors do you have now to 
cover every place in the state? 

MR. CARVER: I'm not part of Cal-OSHA. 

SENATOR PETRIS: I know, but it's the people whose 
appeals come to you. 

MR. CARVER: I think we have ten judges. We have total 
staff have 27 people, and that includes four retired 
annuitants . 


MR. CARVER: Four retired annuitants. We have one 


retired judge who we kept on who handles the Long Beach area in 
Southern California. That's cost effective, in our opinion, to 
continue the annuitants. We would like to continue the annuitants 
so we can continue the good job, the good job that we're doing on 
the Appeals Board. 

SENATOR PETRIS: What's an annuitant? Is that a retired 

MR. CARVER: A retired person that's brought back to 
work . 

CHAIRMAN LOCKYER: That's you next year. We're going to 
bring you back to work. Now I know what to call you, an 
annuitant. Honorable annuitant. 

SENATOR PETRIS: Like in the Army, when you become an 
officer you're officially a gentleman. So, that would have to be 
by statute, I guess. 

MR. CARVER: That's" your job. 

Thank you, Mr. Chairman. 


SENATOR AYALA: Mr. Carver, there's a lot of talk 
About the methyl bromide special session that we're involved with 

Your Board will hear appeals, not necessarily investigate 
any problems with carcinogens. But if there's appeals to this, if 
the Legislature and the Governor signs that bill, you will be 
getting those appeals in your committee? 

MR. CARVER: I'm sure we will. 

SENATOR AYALA: Violation of the Control Act of 1976. 

MR. CARVER: I'm sure we will. 


1 SENATOR AYALA: We'll be hearing those appeals from 

2 ! people out in the field? 

3 MR. CARVER: I'm sure we would be, yes, sir. 

4 CHAIRMAN LOCKYER: Have you heard any before? Have any 

5 ; methyl bromide issues come before the Appeals Board in the 

6 J past? 

7 MR. CARVER: No, I have not. 

8 CHAIRMAN LOCKYER: What's the pleasure of the Committee. 

9 MR. CARVER: May I say something? We didn't slop any 

10 hogs this time, did we? Remember last time? That was fun. I got 

11 a lot of comments on that. 

12 SENATOR LEWIS: Move confirmation. 

13 CHAIRMAN LOCKYER: We have a motion to confirm. May I 

14 substitute the prior roll? That'll be the order. 

15 Thank you, sir good luck. 

16 MR. CARVER: Thank you very much. Appreciate it. 

17 CHAIRMAN LOCKYER: Next one is Mr. Del Piero for the 

18 Water Resources Control Board. Good morning. 

19 MR. DEL PIERO: Good morning. 

20 CHAIRMAN LOCKYER: Want to start with any comments. 

21 MR. DEL PIERO: I've been following the drill, Mr. 

22 Chairman. 

23 Mr. Chairman and Members of the Committee, my name Marc 

24 Del Piero, member of the California Water Resources Control Board. 

25 The State Water Resources Control Board is a five-member board 

26 established by the Porter-Cologne Act that is primarily 

27 responsible for the allocation of this state's surface water 

28 supplies, and is also responsible for protection of the water 


quality of the waters within State of California. 

There's five members of the Board. The appointments to 
the Board are categoric. I currently serve in the capacity as the 
attorney member of the Board. 

Additionally, the board divides up a number of its 
responsibilities. I am currently Cal-EPA's designated coordinator 
for dredging issues throughout the State of California/ 
particularly in regards to harbors and estuaries. 

CHAIRMAN LOCKYER: If I can interrupt on that point. 

Thank you for your assistance for Bay Area problems we've 
been having in the last few years. 

MR. DEL PIERO: It was a long haul. I attended meetings 
for about three and a half years to get that completed. We're 
pretty close to a very favorable conclusion, I think, on behalf of 
all the ports. 

Additionally, I work on wetlands issues for the Board. 
The two regional boards that I attend regularly and act as liaison 
on behalf of the State Board are the San Francisco Regional Water 
Quality Control Board and Lahoten Regional Water Quality Control 
Board that takes care of the eastern Sierras, Lake Tahoe all the 
way down to the northern Mojave. 

Additionally, I oftentimes act in the capacity as hearing 
officer on some of the major water rights issues that come before 
the State Water Resources Control Board. In the last couple of 
years, I've acted as the hearing officer on major water rights 
determination hearing on the Mokalumne River dealing with East Bay 
MUD's water rights. And then the one that is probably best known 
is the hearing that I conducted for 40-plus days that addressed 


the issues of water rights held by the City and County of Los 
Angeles on the tributaries to Mono Lake. That resulted in the 
Mono Lake Orders that was adopted about a year ago. 

Mr. Chairman, that's a brief outline of what I do and 
what my responsibilities are. I'll be happy to address any 
questions that your Committee might have. 

Before I do that, however, I do want to express my 
appreciation to Nancy Michel for all the assistance she extends, 
not only to me, but to every other individual who comes before 
your Committee. I've had the occasion to work with her twice, and 
since you all are her bosses, you ought to know that she really 
does a good job. 

CHAIRMAN LOCKYER: That's nice, thank you. She may be an 
annuitant someday, but hopefully not soon. 

I note, looking at your letters of support, that former 
Assemblyman Bagley says some nice things. But then he says, 
honorable and honest as me." So, I began to have some doubts 
about this matter. 

[Laughter . ] 

CHAIRMAN LOCKYER: Anyhow, are there questions from 
Members . 

MR. DEL PIERO: Does that mean I'm in trouble with the 
other Members of the Committee? 

CHAIRMAN LOCKYER: Maybe. It made me look a little more 

You've been there now for a time and perhaps have some 
reflections on just the general structure and policy. If you were 
to just reflect on your experience and how maybe the law could be 


improved or the Board and its operations run better, what would 
you indicate? 

MR. DEL PIERO: There are — we basically have two 
responsibilities; we've got three divisions, but we really have 
two responsibilities. One is deciding who gets what surface 
waters in the state, and the other is protecting water quality 
throughout the state. 

In terms of the water quality issue, we have two 
divisions. One is the Division of Water Quality, and the other is 
the Clean Water Programs, which is the division of our board that 
administers all the grants and loan programs for sewage treatment 
plants, waste water reclamation facilities, water treatment 
facilities in some instances. 

There are basically three things that, after having been 
there four years now, I'm somewhat concerned about. Historically 
our board has made great strides in terms of improving water 
quality within the state. . That was primarily because in the 1970s 
and the 1980s, the State Legislature and the governors at that 
time supported a large amount of funding to be made available for 
loan programs, and earlier, even grants programs to effect 
construction of capital facilities to protect water quality. 

And when I talk about that, I'm specifically addressing 
the issues of waste water treatment plants and reclamation 
facilities. Those moneys, for the most part, have expired. The 
vast majority of them were funded through bond acts, and those 
moneys, for the most part have expired. 

This state has continued to grow at a remarkable rate. 
Even though during the '70s and particularly during the 80 's we 


1 developed a significant infrastructure capacity in terms of the 

2 treatment of waste water and sewage in this state -- and we're 

3 I very creative, in all candor, in turning those waste water 

4 facilities into water resources through reclamation -- the fact of 

5 the matter is, local governments now, for whatever reason, are 

6 finding it more and more difficult to build that additional 

7 J increment of capacity that will be necessary to serve the state in 

8 the 21st Century. 

9 We are finding it somewhat frustrating because our funds 

10 that we've relied on historically have all been expired, and in 

11 all candor, some of those accounts will be empty as of July of 

12 this year. 

13 So that's the first thing, Mr. Chairman, that I'm 

14 concerned about, is that in order for this state to sustain a 

15 strong enough element of growth to address the things that I read 

16 about that are concerns of all the Members of the State 

17 Legislature -- job generation, dealing with problems of education, 

18 dealing the over-all problems of getting California back to the 

19 pinnacle of economic activity that it enjoyed in previous 

20 decades -- infrastructure is clearly going to be one of the 

21 things that the State Legislature and, in fact, the people of the 

22 State of California have to come to grips with. 

23 The economic engine that everyone around the world 

24 recognized as California was driven by an availability of 

25 resources and an infrastructure capacity that allowed for that 

26 growth to take place. And unless we renew that commitment into 

27 the 21st Century, we will not realize a return to that degree of 

28 growth and that degree of job generation in the future. 


Secondly, it seems to me in terms of the water rights 
issues, we currently in the State of California use in excess of 
two million acre feet of water more than we have. That's through 
overdraf ting groundwater basins primarily and through other 
excessive demands placed on our water supplies over and above what 
the All Mighty delivers to us on an annual basis, or what is in 
storage in the ground. 

It is imperative, I think, for this state to come to 
grips with that issue. It is impossible for us to talk about the 
development of new water resources until we address the shortfall 
that we currently have. And it's as important for us to 
understand we are behind the eight ball in terms of being able to 
effectively address economic growth unless we've got water. 

Mr. Chairman, I was a county supervisor for 11 years 
before the Governor was kind enough to deliver me from the 
purgatory of local government. And the one thing I know about in 
terms of development is that it's not driven by whether or not a 
city council or a board of supervisors approves a development. 
It's driven by water availability, sewage capacity, transportation 
infrastructure . 

We have a significant problem in terms of water 
availability in this state. A far greater emphasis need to placed 
on waste water reclamation. A far greater emphasis needs to be 
placed on groundwater management, particularly the concept of 
groundwater banking, much like the water bank that was used down 
in Kern County in the past, where excess water that's available in 
wet years is stored, not necessarily in surface reservoirs, 
although I wouldn't foreclose that, although number of sites we 


have available in the state, but there's a significant amount of 
potential storage capacity in groundwater aquifers throughout the 
state that is currently under-utilized or not utilized at all that 
would pose for us a tremendous opportunity in terms of storing 
water in wet years so that we have a buffer in those dry years, 
like the six-year drought that we all can remember all too 

And finally, the third issue, Mr. Chairman, I think what 
probably needs to be addressed is that there needs to be a 
coordination between development that takes place -- and when I 
say development that takes place, I mean urbanization as well as 
agricultural development -- and available water supplies. 

It was my experience -- and not only have I been involved 
in government, but I've been involved in the private sector as 
well in some businesses that my family owns -- it's my experience 
in both of those capacities that the thing that business wants 
more than anything else -- and it doesn't make any difference 
whether it's in California, Iowa or India -- the thing that 
business wants more than anything else is certainty. When a 
business, and I don't care if it's a silicon chip manufacturer in 
Santa Clara County or a tomato grower in Merced, or hotel in San 
Diego, when those people can't -- don't know whether or not they 
have a reliable water supply, it hurts their business. They are 
preoccupied with something other than what they should be doing, 
which is running their business effectively. 

The only way to do that is by guaranteeing that the 
available water supply corresponds with the available demand. And 
that necessitates a degree of planning that this state has 


historically not had. The State Department of Water Resources has 
done a good job, I think, in terms of trying to project out the 
demands on their system. 

But in terms of the state as a whole, that effort has not 
taken place primarily because there's not been the political will 
to do that. I think in the next century, if we don't do that, we 
will face continuing shortages; we will face continuing declines 
in our environmental resources, and we will face continuing 
frustrations on the part of our business community because of the 
inability to guarantee supplies. 

CHAIRMAN LOCKYER: Thank you for an informative answer. 
Are there other questions? Yes, Senator Petris. 

SENATOR PETRIS: In the discussions that take place and 
you're projecting what the demands are going to be in the future, 
does the possibility of slowing down the growth enter into the 

We used to have, for a while, a no growth movement, which 
I don't support, but I support a not too much growth movement. 

You know, I remember seeing signs in different parts of 
the Country when driving through an area that's sparsely 
populated, and it says "Town of such-and-such, population 11,000 
Watch us grow." Our slogan has been for centuries, watch us grow; 
we're going to grow. 

Is that necessarily the best thing when we're in the 
present situation of limited resources? 

MR. DEL PIERO: First of all, Senator Petris, Sam 
Karras told me to say good morning to you. 

SENATOR PETRIS: Thank you. I withdraw the question. 


1 Say hello to him. 

2 MR. DEL PIERO: I will. I'm going to talk to him this 

3 afternoon. 

4 But I'd like to answer your question. 

5 Growth means a lot of things to a lot of people. Growth 

6 to a developer means the approval of a subdivision. Growth to the 

7 executive officer for the State Chamber of Commerce means a 

8 variety of things, including the generation of jobs. Growth to an 

9 educator means the increased number of children attending the 

10 school. 

11 All of those things consume water. And so, if you're 

12 lucky like me, where you have the opportunity to look at growth 

13 from the narrow aspect of resource availablity, big growth, small 

14 growth, fast growth or slow growth, or no growth, are terms that 

15 really don't have any definition anymore. 

16 I think the thing that's most important for us to focus 

17 on in terms of the increased consumption of water is whether or 

18 not -- whether or not the decisions that are being made that 

19 irrevocably commit a fixed supply of water to something are 

20 decisions that truly benefit the State of California. 

21 Part of what local government does and part of what your 

22 Legislature does, and a lot, frankly, of what we do in terms of 

23 rendering water rights decisions is determining who gets water. 

24 And although we don't have any land use authority, the fact of the 

25 matter is, if you have one hundred acre feet of water, a hundred 

26 acre feet of water can -- is enough water to take care of a 

27 manufacturing plant that'll produce a thousand jobs. One hundred 

28 acre feet of water is enough, at least in the North Bay Area, to 


take care of a golf course, or a hundred acre feet of water is 
enough to take of about two hundred houses. 

Now, in terms of growth, I guess the decision is, if you 
only have a hundred acre feet of water, you have to decide which 
ones of those are going to be the most -- have the greatest amount 
of benefit for the economy and greatest amount of benefit for the 
community. that it serves and state as a whole. 

The problem is, we've never had to make those kinds of 
choices before. We were never two million acre feet short 
before. That shortage has crept up on us over a period of time, 
and now we have a play catch up. We have to develop new and 
reliable water resources. Waste water reclamation is a great 
potential, but there are also water resoucres that can also be 
developed and should, in fact, be evaluated in the future. 

But when we do that, we also have to understand that 
there's limitations. Sooner or later we're going to reach what is 
economically the limit in terms of what we can develop, unless 
someone comes up with great way of desalting sea water. 

And so, within that context, we have to make real hard 
decisions as to what kinds of economic activities that water 
resource is going to be committed to, to try and provide the 
greatest amount of benefit to our communities here in California. 

So, that's really the key to it. It's not growth, no 
growth, slow growth, fast growth. It's what kind of growth it 
is. It's whether or not the growth is serving the population we 
already have here, or serving some population that may, in fact, 
come into the state from somewhere else in the future. 

SENATOR PETRIS: How are we doing on conservation? 


MR. DEL PIERO: We're doing pretty well in conservation, 
in all candor. There's been -- that's not to say that more 
couldn't be done, but when I first came on the Board in 1992, 
there were a lot of people -- and I don't mean to make a joke out 
of this -- but there were a lot of people who really couldn't 
spell conservation in certain parts of the state. 

There has been a major effort made on the part of the 
League of Cities. There has been a major effort made on the part 
of the California Supervisors Association to impart to those 
governmental jurisdictions the responsibilities for them to 
implement water conservation strategies. 

Additionally, organizations like the Metropolitan Water 
District in Southern California, and a lot of the agencies that 
receive water from the Delta through both the State Project as 
well as the Central Valley Project, because of the emphasis placed 
on water conservation by the Bureau of Reclamation and by the 
State Department of Water Resources, have implemented water 
conservation strategies that I think are, in fact, having some 
very beneficial results in terms of developing additional water 
through the use of conservation. 

SENATOR PETRIS: Do we have a statewide goal to save so 
much -- 

MR. DEL PIERO: We have a statewide goal for — 

SENATOR PETRIS: -- against that two million acre feet? 

MR. DEL PIERO: No. We have a statewide goal for 
reclamation by the year 2000. That's going to be -- the success 
of that goal that was established by the State Legislature, in all 
candor, will be a function of how much money will be available in 


the next several years to assist local governments in constructing 
and putting into operation waste water reclamation facilities. 

SENATOR PETRIS: Should we have a specific goal? 

MR. DEL PIERO: I think we should have a goal — well, 
the Metropolitan Water District -- and you'll forgive me if I 
don't quote this directly -- adopted a goal years ago that said 
that there would be enough water for the needs of its member 
agencies, okay. 

I think our goal ought to be that we have enough water to 
take care of the needs in the state, understanding that the needs 
are not -- the needs have to have some limitation, because if we 
don't, it's sort of like me telling my seven-year-old he can go to 
Toys R Us and don't worry about the bill. Sooner or later there's 
some limit that has to be placed on what is taking place. 

That's why we really need to make value judgments as to 
where we're going to allocate water supplies. Are these water 
supplies that we've got, that we're able to generate through 
conservation, through reclamation, through the development of 
additional surface supplies, are these water supplies really going 
to be able to generate jobs so that people aren't in unemployment 
lines in the state? Are they going to be put to use so that 
instead of going to some economic function that really results in 
very few jobs and very little economic development, are they going 
to be put to use so that it generates a lot of jobs, and a lot of 
economic development, and a lot of growth. 


MR. DEL PIERO: Certainly. 



SENATOR AYALA: I have a lot of questions, but I will 
just ask one or two. 

The courts in recent times have declared that your board 
has the jurisdiction over all California waters, including the 

Now we've got quality standards for the Delta, but not 
for the Bay. My understanding is that your board is now having 
hearings in terms of setting standards for the Bay. 

I don't know why, but I was under the impression that 
Porter-Cologne took care of the Bay problems in terms of quality. 

If indeed you set standards for the Bay for water 
quality, you're going to need additional fresh water going in 
there. Where are you going to get it. 

MR. DEL PIERO: Well, let me -- that question had three 
parts . 

CHAIRMAN LOCKYER: The right answer is not San 
Bernardino . 

SENATOR AYALA: There's only so much water, and most of 
it is adjudicated. 

MR. DEL PIERO: I know. Let me try and answer your 

First of all, last May -- and I may be off by thirty 
days; it might have been the end of April of the first of June -- 
we adopted the water quality plan for the Delta. That water 
quality plan for the Delta was a mechanism by which we implemented 
standards to deal with a lot of the problems that exist within the 

Because we haven't been able to address a significant 


portion of the water quality problems that exist in the Delta, it 
necessitated a significant increase in the fresh water flow 
through the Delta. That, in fact, provides a beneficial result in 
terms of -- 

SENATOR AYALA: Came from where? Where did that fresh 
water come from? 

MR. DEL PIERO: Well, a big 800,000 acre feet of it came 
out of the Central Valley Project and the State Water Project. 

SENATOR AYALA: But the other projects were not touched. 

MR. DEL PIERO: They are net, ar.h the reason is because 
originally when we -- when my board, long before I was around, I 
believe it was in 1978 or 1979, adopted Decision 1485 that set 
water quality standards in the Delta, the junior water rights 
holders in the state, or in the Central Valley Project for the 
most part -- I mean, there's soir.e minor exceptions to that — but 
the junior water rights holders in terms of that system are the 
Central Valley Project and the State Water Project. So, in terms 
of using priority of right, those agencies that have the junior 
water rights have historically been responsible for giving up 
their water earlier than those that had senior water rights. 

We aispteh a water quality plar. fir I-elta back in the 
spring cf last year. As a result cf that, that has improved -- 
that provides fresh water flows into San Francisco Bay that has a 
tendency of improving water quality there. 

However, we did have a court case that ruled against us 
ar.i iverturr.ed a plar. kr.iv.-r. as the Enclosed Basin and Estuaries 
Plar. that cur board is responsible for adopting. 

We adopt three water quality plans for the various 


surface waters in the state. There's one called the Inland 
Surface Waters Plan; there's one called the Enclosed Bays and 
Estuaries Plan, and there's one called the Ocean Plan. 

The Inland Surface Waters Plan and the Enclosed Basins 
and Estuaries Plan were overturned in a lawsuit last year. The 
court held that we had not complied with some technical 
requirements in terms of CEQA and, as a result, it was overturned. 

Because of that, we went back and started over again, set 
up a citizens committee representing a variety of interests from 
throughout the State of California. 

In the meantime, the Basin Plan for San Francisco, the 
San Francisco Regional Water Quality Control Board is determining 
what discharges take place into the San Francisco Bay until we get 
Enclosed Basins and Estuaries Plan updated. 

The Regional Water Quality Control Board is responsible 
for monitoring and making sure that discharges into the Bay do not 
exceed Clean Water Act standards, nor do they exceed the standards 
that have been adopted into the Basin Plan for San Francisco Bay. 

So, that's a long answer to a relatively short question. 
The problem is this. The Enclosed Basins and Estuaries Plan is in 
the process of being redeveloped. It will be several months 
before that is ready to come back to hearing for future adoption. 

In the meantime, you've got the Regional Board doing its 
best to implement the plan and to protect water quality from the 
standpoint of point source discharges, and you have the water 
quality plan that was adopted for the Delta that is contributing 
some water into the Delta for the purposes of freshening up the 
Delta as well as providing some ancillary benefit to San Francisco 



SENATOR AYALA: Most of Central and Southern California 
draw from the Delta? 


SENATOR AYALA: Except for San Francisco, with their 
Hetch Hetchy Canal and the East Bay stuff, you know, they don't 
even touch the Delta. 

It seems to me that if you're going to sets standards for 
the Bay, you should be only triggered when a new source of water 
is developed to make sure that those who now have this water will 
not be losing the water that they're accustomed to using. 

I don't have a problem with setting standards in the Bay. 
I don't know why they want standards in the Bay, but I can see the 
Delta. That's the water we all drink from. But the Bay, as I can 
see it, it's almost salt water. Nobody's convinced me that we've 
got to set standards for the Bay other than the Porter-Cologne 

MR. DEL PIERO: It's got to do, in all candor, that San 
Francisco Bay is a unique estuary. It provides not only a lot of 
recreation opportunities, but it provides a significant amount of 
habitat for environmental resources. 

SENATOR AYALA: Down in South Bay — 

MR. DEL PIERO: There's a lot of fishing that takes place 
in the Bay, and as a result of discharges into the southern part 
of San Francisco Bay, the toxicity in fish tissues has, in the 
past, been very, very high. There's been some improvement 
realized because of the efforts of the Regional Water Quality 
Control Board in terms of that, but there have been public health 


1 problems in the past because of that. 

2 SENATOR AYALA: I want to sit down with you. 

3 MR. DEL PIERO: I'd be happy to sit down with you. 

4 SENATOR AYALA: One more question. Do you think that 

5 under normal rainy seasons in California that the state is water 

6 bankrupt . 

7 MR. DEL PIERO: Oh, I think last year about this time, I 

8 was a genious. There was so much rain coming down we couldn't -- 

9 there was no possibility of us allocating everything that came 

1 down . 

11 But in all candor, this state is generally a desert. And 

12 in order for us to continue to realize the luxury of living in the 

13 economy that we do, it necessitates us managing our water 

14 resources very effectively. 

15 In order for us to sustain growth in the future, we're 

16 going to have to be smarter. My grandfather used to say, in order 

17 to stay the same, you have to change. We have to change. In 

18 order for us to stay successful we have to get smarter. 

19 SENATOR AYALA: During droughts, everybody suffers, but 

20 I'm talking about a normal rainy season. 

21 It seems to me that all we need is new transmission lines 

22 from an area of abundance to an area of need without hurting the 

23 area of origin. I think we can do that if we just get the 

24 environmentalists out of the way and all these other people. Let 

25 the engineers, and the geologists, and the experts figure it out, 
2 6 and we'll get it done. 

27 CHAIRMAN LOCKYER: You didn't have to respond. 

28 Any further questions? Yes, sir. 


SENATOR LEWIS: What is the disparity of the price of 
water in the State of California? 

MR. DEL PIERO: The disparity? 

SENATOR LEWIS: Of the price. Like in parts of Southern 
California, they're getting hundreds of dollars per acre feet. In 
other parts of the state it's much cheaper. 

Can you give me a read on that? 

MR. DEL PIERO: Senator, I know of some places in this 
state where water costs about five bucks an acre foot. And I know 
in some places in this state where water -- new sources of water, 
primarily through reclamation, are costing seventeen hundred 
dollars per acre foot. 

Those places where water is very inexpensive -- those 
places where water is very inexpensive, the economic activities 
that go on there tend to not be economic activities that generate 
a significant amount of economic growth. 

That's probably an unartful way of characterizing it, but 
this is what I mean. The places where they can afford to spend 
seventeen hundred dollars on reclaimed water are places in the 
southland where the water is going for major industrial or 
commercial activities. 

My dad has been a lettuce grower for fifty years. He 
couldn't afford seventeen hundred dollar an acre foot lettuce -- 
water. It's just not a realistic possibility. 

So, the range is significant. Dependent upon the 
location of the water and the cost, it has a direct impact on the 
economic activities. 

SENATOR LEWIS: It strikes me, though, that when you have 


disparity -- in some places, as you mentioned, five dollars an 
acre foot versus seventeen hundred dollars -- that the pricing 
mechanism is screwed up. 

MR. DEL PIERO: Well, the pricing mechanism is a function 
not so much of suppliers. It's a function of who's got a water 

When I talk about five dollars an acre foot, you're 
talking about, for the most part, people who have riparian water 
rights in the northern portion of the Sacramento Valley. I mean, 
if you have overlying -- if you have groundwater rights, if you 
own a piece of property that's underlain by a significant 
groundwater aquifer, basically the cost of water to you, since you 
purchased it with the fee title to your property, is whatever it 
costs you to pay PG&E or Southern California Edison, or whatever 
other power company it is, to run your pump. 

Seventeen hundred dollars an acre foot is a cost that 
would be generated someplace down in southern Orange County or 
northern San Diego County as part of a reclamation project. 

So, you can't do a direct price cost comparison because 
it's all tied up in where the water rights are as well. 

SENATOR LEWIS: But to the degree that we don't have 
enough water in the State of California to meet our potential 
growth, or it's causing problems, could it be that part of the 
problem is that in certain parts of the state, water's priced too 

MR. DEL PIERO: I don't know how to answer that, because 
I guess the question is, how much do you want to pay for a jar of 
strawberry jam. 


It's hard to say water is priced too cheaply because it 
depends on what economic activity is going on there. If the water 
is seventeen hundred dollars an acre foot, you won't grow 
strawberries . 

If it's seventeen hundred dollars an acre foot, you may 
be able to build a hotel on the beach in San Diego. If it's a 
hundred fifty dollars an acre foot, no. 

If it's two hundred and fifty dollars an acre foot, this 
is a very precise number, you can grow artichokes and still 
realize a profit. If it's three hundred you can't. 

So, in terms of that, if it's sixteen hundred dollars an 
acre foot, you can manufacture silicon wafers. So, in terms of 
the cost, the costs are probably as myriad as the economic 
activities that go on throughout the state. 

When I was talking earlier about cost comparisons and 
supply around the State of California, the decisions in terms of 
growth that have to be made is whether or not we're going to 
continue delivering water for functions that don't have a 
significant amount of job generation as opposed to delivering 
water to functions that do. 

SENATOR LEWIS: But in a macro sense, it seems to me 
that — 

MR. DEL PIERO: In a macro sense, you're right. If you 
discount water rights, the discrepancy in terms of cost would 
cause one to believe that there's a real problem. 

SENATOR LEWIS: To the degree that water might be under 
priced in some areas that would tend to support over consumption? 

MR. DEL PIERO: I don't I think — Senator, if I could 


1 respond to that, I think you'd find whenever that issue comes up, 

2 every user will argue that they are not using more water than they 

3 | need. We hear that regularly. 

4 No one wants to give up their water right. Know one 

5 would give up their water right, as far as I know, for any reason 

6 unless it's for money. And that's why there's been a market in 

7 the last several years in terms of water transfers. 

8 In fact, in the future, this state may realize a greater 

9 amount of water transfers so long as the environmental issues can 

10 be addressed. 

11 SENATOR LEWIS: Thanks. 

12 CHAIRMAN LOCKYER: Any other questions. 

13 I note also there's no opposition and a wide range of 

14 support from a variety of perspectives. You've done an excellent 

15 job engaging with us in discussing some of these things. 

16 MR. DEL PIERO: Do you have any questions? 

17 CHAIRMAN LOCKYER: I have lots, but I'm sort of watching 

18 the clock. I have a responsibility to get a lot done here before 

19 1 : 00 p.m. 

20 What's the pleasure? 

21 SENATOR AYALA: I'll move the nomination of Mr. Del 

22 Piero. 

23 CHAIRMAN LOCKYER: We have a motion. Call the roll. 

24 SECRETARY WEBB: Senator Ayala. 

2 6 SECRETARY WEBB: Ayala aye. Senator Lewis. 


28 SECRETARY WEBB: Lewis aye. Senator Petris. 




SECRETARY WEBB: Petris aye. Senator Beverly. 


SECRETARY WEBB: Beverly aye. Senator Lockyer. 


SECRETARY WEBB: Lockyer aye. Five to zero. 


MR. DEL PIERO: Thank you very much, Mr. Chairman. 

CHAIRMAN LOCKYER: Ms. Diener is next for CTC. Hello 

MS. DIENER: Good morning. 

CHAIRMAN LOCKYER: Did you wish to begin with any comment 
at all? 

MS. DIENER: I would only like the comment that I have 
served one term on the Transportation Commission. I am now coming 
before you today to be confirmed for a second term. 

I have taken my responsibilities with the Commission very 
seriously in representing the public interests for adopting 
programs and policies that enhance transportation. And I would 
appreciate your confirmation today. 

CHAIRMAN LOCKYER: What would you want to tell policy 
makers about what you've learned as a member of the Commission in 
terms of problems that need to be addressed, things that would 
make your job better. 

MS. DIENER: Well, you could always send money; that 
would help. 

CHAIRMAN LOCKYER: Okay, we've heard that before. 

MS. DIENER: I'm sure you hear that from everyone. 


1 As you know, in the last four years since the blueprint 

2 J legislation was passed in 1989, which was really to take us into 

3 the 21st Century, it was a very good program. However, there have 

4 been many changes that have affected the program as we felt it 

5 would take us into the 21st Century. 

6 With the earthquakes and many other things that have 

7 happened, it has really impacted transportation and the funding of 

8 our different programs. I think the Commission has done a good 

9 job in living within that blueprint legislation; however, we are 

10 going to 1996 STIP hearings, and there is financial problems that 

11 are affecting the programs. 

12 CHAIRMAN LOCKYER: Does the make-up of the Commission 

13 seem to make sense to you? If you were starting over again, are 

14 there ways you'd make it different? 

15 MS. DIENER: It seems to work very well. There seems to 

16 be representatives from up and down the State of California, both 

17 north, south, and central, and I represent the Central Valley in 

18 those terms, and from various professions. So, I think it has 

19 been a good make-up. 

20 CHAIRMAN LOCKYER: We haven't gotten rid of the 

21 Livingston light yet though? 

22 MS. DIENER: No, but they're working on it. I usually 

23 drive back and forth to Sacramento, and so I'm very much aware of 

24 the progress that is being made. It's coming along very well. 

25 CHAIRMAN LOCKYER: Sometime in the next century. 

26 MS. DIENER? No, no. I hope it'll be long before 

27 that. 

28 CHAIRMAN LOCKYER: Other questions from Members? Senator 


Petris . 

SENATOR PETRIS: Yes, I'm interested in the capital 
corridor, and other transportation efforts which we've adopted in 
order to offer more services for travel by rail. 

I understand you've been strongly opposed to funding the 
Amtrak capital. I'm interested because they serve the East Bay. 
That's where I live and serve the local people. 

MS. DIENER: I would like to maybe rephrase that just a 
little bit, in that I have not been strongly against serving any 
-- I'm very much in favor mass transportation. Chaired the first 
rail committee of our Transportation Commission. I would very 
much like to see Amtrak come all the way to Sacramento and up 
through Northern California. 

I think that we are doing a lot of work on the capitols 
right now, and I think there was a problem with justifying adding 
a fourth train at this time', until we can improve the service. 
Because only when we improve service will we get people to 
actually ride on the trains. 

SENATOR PETRIS: What's the problem with the service? 

MS. DIENER: They're doing a lot of track work right now. 
The trains were not necessarily running on time. They were late. 
I've had a lot of complaints about the timeliness of the train 
service. From what I could find out, it had a lot to do with the 
fact that a lot of work was being done on the tracks, which was 
holding up some of the trains. 

SENATOR PETRIS: My understanding is, we provided some 
money, 56 million for the capital improvement program for the 
corridor, and there was an agreement between Caltrans and the 


1 Southern Pacific supporting it. It would have cut travel time and 

2 allowed more trips per day, twenty round trips per day. But the 

3 CTC blocked the funding. 

4 Is that because of the track work that was going on? 

5 MS. DIENER: No, I'm sorry. I guess I was referring to 

6 the San Joaquin, and you were talking about the capitols. 

7 No, that, I believe is a little bit different. Actually, 

8 the Commission has been in favor of the capitols. However, we 

9 really feel that we have to reserve capacity for commuter use 

10 also. 

11 I believe there's going to be an item coming up for us in 

12 January, in our January meeting. 

13 SENATOR PETRIS: Well, when we get to 20 round trips per 

14 day, I guess we're including commuters. That's not clear here in 

15 my note. 

16 Last year, the Commission also refused to allocate funds 

17 that had all ready been budgeted to the capitols by Legislature 

18 and the Governor. And the CTC said no. 

19 They blocked, previously in '94, they blocked funding for 

20 the $56 million capital improvement program. 

21 I'm wondering why, since it's gone through such a long 

22 process to be developed, approved, and negotiated and so forth, 

23 it looks like a hostility to intercity rail service. 

24 MS. DIENER: It's my understanding that we have passed 

25 all of the Proposition 116 funds for the capitals, and we have had 

26 a few problems, as I said, where we wanted to be sure that we 

27 reserved the capacity for the commuter, to make sure that public 

28 resources were being used correctly. 


SENATOR PETRIS: What does that mean? Used on some other 

MS. DIENER: No, no. Just that the resources were being 
used in order to preserve the capacity. 

SENATOR PETRIS: What was the problem? They were not 
being used for that purpose? 

MS. DIENER: No, it was being discussed, and we wanted to 
be sure that it was. 

SENATOR PETRIS: So there was no evidence that it was 
being improperly used or improperly planned, so why the delay? 

MS. DIENER: The delay was at that time that we didn't 

SENATOR PETRIS: How long did it take you to find out? 

MS. DIENER: Well, sometimes these things have to be 


MS. DIENER: We'll know in January. As I mentioned to 
you, this is coming up at our January meeting. 

SENATOR PETRIS: What's happening in the meantime? Have 
you had further meetings with Amtrak? 

MS. DIENER: I believe that the Department has. We have 
met with Amtrak, but not on this issue. 

SENATOR PETRIS: So, your discussions, I suppose, are 
intended to resolve that between the CTC and the Caltrans people 
and Southern Pacific? 

MS. DIENER: And the Department. 

SENATOR PETRIS: And the Department. That will be 
resumed in January? 


MS. DIENER: That's correct. 

SENATOR PETRIS: Before this month is over? 

MS. DIENER: That's correct. 

SENATOR PETRIS: We're talking about, from where I sit, 
in order to get some funding measure adopted, it takes a lot of 
negotiation to begin with, and a long process in both Houses, and 
sometimes a vote of the people as well. It just means an 
exhaustive, long-range of effort, and then it gets blocked. That 
becomes very frustrating. 

I would think there 'd be some effort to speed that up. 

Now, is your current problem a need for improvement of 
the tracks? Is that still a problem? 

MS. DIENER: I don't think that's a part of the problem 
that you mentioned earlier. 

SENATOR PETRIS: That's a different line, okay. 

Does the Commission agree that we need more frequent 
service and more rider-friendly service or not? 

MS. DIENER: Yes, that's what I was mentioning earlier, 
that I think we're all working very hard to improve the service in 
the whole State of California. And we've worked very closely with 
Amtrak, in asking them to come before us and give us information 
as to what they're doing with their business plan, what they're 
doing to improve the situation that exists in California. 

SENATOR PETRIS: How does this work? You have these 
meetings. You're in charge of the funds that have been voted on 
by the people, so you do the allocating to Amtrak, for example, to 
do this and that. But if you feel they're not doing it properly, 
or their plan is not very good, then you will withhold the funds, 


I assume, until they get the right plan. 

MS. DIENER: That's why a lot of this is done through 
Caltrans . 

SENATOR PETRIS: Who has the final word, Caltrans or you? 

MS. DIENER: It's the Commission. 

SENATOR PETRIS: How serious is the loss of federal money 
been? Is that a big obstacle, or have you been able to work 
around it? 

MS. DIENER: No, it is a very big issue, and it's one 
that we're working on. We feel that there's several things that 
could be done to enhance. 

For example, some of the federal regulations, if they 
could be given back to the State of California in terms of some of 
the environmental things that need to be done, if they could put 
some of the duplication, the things that have to be done by the 
state and also approved by the federal government, if they could 
give that back to just the state, that would improve and expediate 
some of these projects so that we can get them done quicker. 

ISTEA has not been fully funded in the last few years, 
if that could be brought up to standard. All of those things 
would help greatly. 



SENATOR AYALA: There's a four and a half billion dollar 
shortfall in STIP. Has the Commission discussed that problem on 
how they can resolve it? What methods do they hope will be — 
for all intents and purposes, STIP doesn't exist if you're that 
much in the hole. 


MS. DIENER: The Commission has discussed this problem at 
length. We have, in our report to the Legislature in the last two 
years, reflected some of our thoughts and ideas as to 
recommendations that the Legislature might move forward on. 

It's of great concern to us . I think this is really the 
key year, 1996. We have been able to fully fund most projects up 
until now, but it looks like we will be, in *96, ten to eleven 
percent of projects will not be able to be funded. 

The thing that could make the difference is the seismic 
retrofit bond measure that is on the ballot. That could put as 
much as a billion dollars back into transportation. 

SENATOR AYALA: Are you talking about the bridge 
retrofit? That's a bond issue. You prefer a bond issue over 
sales tax. 

MS. DIENER: No, this is the one that will be — 

SENATOR AYALA: I understand, but I'm asking about you. 
What do you prefer as a way to fund these projects, a bond issue 
or a gasoline sales tax like we did in San Francisco? 

MS. DIENER: I think there's many ways. There's 
congestion tax fees; there's user fees. 

SENATOR AYALA: Which do you prefer? 

MS. DIENER: Which do I prefer? Personally, I don't feel 
at this time that we need to raise the state sales tax on gas. 

SENATOR AYALA: But a bond issue's okay? 

MS. DIENER: The seismic retrofit bond, yes, I think 
that's going to benefit our entire infrastructure up and down the 
State of California. 

SENATOR AYALA: People forty years from now paying for 


it, as opposed to a sales tax, like in San Francisco, that's over 
in three or four years and it's gone. You prefer a long-range 
funding of these projects? 

MS. DIENER: For the seismic retrofit, yes, I 
do . 

SENATOR AYALA: People will be paying, and they don't 
know what they're paying for and what they're retrofitting? 

MS. DIENER: Well, they're retrofitting all of the 
bridges in the State of California. 

SENATOR AYALA: I know, but they're going to be paying 
for it 30 or 40 years to amortize the bonds, and by that time, 
people who are out there in the workforce won't even know what 
they're paying for. 

If they had sales tax, it seems to me it would be over 
within three or four years, and get the job done, on their way. 

But you prefer a bond issue? 

MS. DIENER: In this particular instance, yes, I do. 

SENATOR AYALA: Thank you. 

CHAIRMAN LOCKYER: Other questions? 

I'll note no opposition in the file, unless there's 
someone present who wishes to add something to the record. I'll 
entertain a motion. 

SENATOR BEVERLY: Senator Maddy is a strong supporter of 
the nominee . 


SENATOR BEVERLY: I move we recommend confirmation. 

CHAIRMAN LOCKYER: Okay, call the roll, please. 

SECRETARY WEBB: Senator Ayala. 



SECRETARY WEBB: Ayala aye. Senator Lewis. Senator 



SECRETARY WEBB: Petris aye. Senator Beverly. 


SECRETARY WEBB: Beverly aye. Senator Lockyer. 


SECRETARY WEBB: Lockyer aye. 

CHAIRMAN LOCKYER: Four-zero. Thank you. 

SENATOR BEVERLY: Leave the roll open. 


Members, I want to check with you about schedule. I 
think we probably need to work through the lunch hour to get our 
work concluded, but I'm open on this. I don't want to 
inconvenience Members who wish to testify. 

[Thereupon a discussion was held off the record] 

CHAIRMAN LOCKYER: Okay, we have two members of the State 
Board of Forestry. I guess the next is Mr. Nelson. 

Good morning, sir. Did you want to start with any 
comments at all? 

MR. NELSON: Yes, yes, Mr. Chairman. I'll be brief. 

Mr. Chairman and Members of the Committee, my name is Tom 
Nelson. I'm a registered professional forester in the State of 
California . 

I have been, for the last four years, an industry 
representative on the nine-person Board of Forestry, and I'm 
before you today for possible reappointment confirmation. 


Just briefly, a little bit about my background. I've 
seen many of you before in my capacity down here, working on some 
forestry reform legislation. 

In 1991 and 1992, I was one of the principles in the 
Sierra Accord, which became a series of bills: two in the 
Assembly, two in the Senate. The Assembly bills were Mr. Hauser's 
and Mr. Sher's; the Senate bills were two folks that I learned 
this morning are now annuitants, Senator Keene and Senator 
McCorquodale . 

Those bills passed but were vetoed by Governor Wilson, at 
which time I then became involved in the Grand Accord legislation, 
which was a set of bills sponsored by the Governor. A similar 
thing, industry and environmental coalitions to try and resolve 
some of the ongoing problems. That effort didn't fare very well 
in the Legislature either. 

During that period", I was appointed to the Board of 
Forestry. As I said, it's a nine-person board, which you know 
three of which are members of the forest products industry, of 
which I am one. 

Some of the things that we have accomplished in my first 
term there that I'm particularly proud of were the regulations 
that we passed for mandatory sustained yield, which would disclose 
and show that the private timber land owners who are harvesting 
timber in this state are not harvesting in excess of their growth. 

And secondly, we instigated rules to allow analysis of 
the effects of this over a broader area, two areas, where one is 
sustained yield plans which look at the growth and harvests of an 
individual owner over a 100-year timeframe. The second was a 


1 procedure to put into place local type rules, if you will, within 

2 sensitive watersheds, was the classification; where it could be 

3 shown that if the standard rules did not work, other rules were 

4 necessary, and those would, in fact, be in place for smaller 

5 portions. 

6 Also, along with that, I've been involved, and 

7 supportive, and have voted for various attempts to try and 

8 streamline some of our regulations, particularly for the smaller 

9 land owners who are, in my opinion, overburdened by the process at 

10 this time. 

11 And I also voted in support of the special rules we 

12 recently passed for the Lake Tahoe Basin, to try to expedite the 

13 rehabilitation of the drought-induced mortality up there. 

14 The third -- or, the second point I'd really like to 

15 . mention, as far as where we need to be going, my opinion and 

16 goals, should I be appointed for another term, I think like the 

17 other folks who are up here, and you're probably hearing it daily 

18 down here now, our Board needs to figure out ways to either 

19 maintain and possibly even improve the level of service in these 

20 times of shrinking budgets -- a tough task, as I'm sure you all 

21 know, but I think that's where we need to be headed. 

22 Some of the areas that I favor and would like to work on 

23 are -- really two areas. One is to set up some sort of process 

24 where we can triage, if you will, the harvest plans as they come 

25 in. 

26 As the agencies review these, there are a lot of harvest 

27 plans that come in each year, in the thousands. They all do not 

28 deal with harvesting old growth Redwood on the Coast. There are a 


lot of them that are -- I won't use the word "benign", but they 
probably don't need the same sort of scrutiny that the more 
controversial plans do. 

Yet, our process is so rigid that every single THP in the 
harvest plan that comes in must have a set amount of review, and 
it takes a lot of time. It takes a lot of office time. 

And if we can figure out some way to, as I said, assess 
the risks and put more emphasis on the truly controversial plans, 
I think that's one area we may be able to save some time and money 
in these shrinking budget periods. 

And the second area is, right now the largest emphasis is 
on office review and planning. And I think we need to take a real 
hard look at that and see if there isn't a way that we can move 
the on-the-ground inspection to a higher priority. We have a lot 
of resource professionals, licensed foresters such as myself, and 
a lot of other land management experts. We're spending far too 
much time in front of a computer and not enough time out in the 
woods. And so, one of my personal goals is to see if we can't 
reverse that somehow. 

But at the same time, obviously, we need not to sacrifice 
the protections for the environment nor the protections of the 
private property rights of the landowners. That's easily said, 
and it's very controversial, as you probably understand. 

The last thing I want to bring up is that as an industry 
member, in my previous position, before I accepted the 
appointment, I had a verbal agreement that I made then and I would 
make again with my two bosses, if you will, the man who appointed 
me, Governor Wilson, and my boss, Mr. Emerson who owns the company 


I work for. 

That agreement is that as a member of this Board, I have 
had in the past, and I would continue, to vote my conscience. And 
at times, and this is the understanding, that may be contrary to 
not only the owner of my company in Redding, but also to the 

Both those entities understand that, and they've agreed 
to that. And I would make sure that it was a second condition for 
my reconfirmation. 

With that, I'm here to answer any questions you have. 

CHAIRMAN LOCKYER: Well, maybe it would be appropriate 
just to ask for testimony of any sort, and Members can hold our 
questions for the time being. 

So let me ask first if there are people present who wish 
to comment in support of the appointment? Or, people present who 
wish to make any comments in opposition or express reservations, 
why don't you come on up to the front. 

MR. NELSON: Do you want me to move back? 

CHAIRMAN LOCKYER: Either way, sir. Whichever you wish. 
You may want to respond to some points. 

Do you have some order that you're contemplating? 

MS. HENRY: Actually, we can all talk. 

My name is Liz Henry. I am the Chairman of the Board of 
Supervisors, Mendocino County. 

I have with me two other Supervisors. We are not 
speaking as a majority of the Board on this issue, because we have 
not voted. We're speaking as individuals. 

I'd like to have the Supervisors speak next, and then we 


have a number of public from Mendocino County. 


MS. HENRY: And other areas. 

First of all, Mr. Chairman and Members of the Committee, 
I'm really pleased to be here in this hearing. It gives us an 
opportunity to come and to speak, and I hope you really will take 
this reappointment seriously. It's a very serious matter to us 
that you will review the qualifications of Mr. Nelson, ask some 
hard questions, and hear the public input. 

Again, Mr. Nelson and I know each other from a hearing 
process. I have no feelings personally. This is really a 
professional thing I feel that I do have to do, especially as a 
member that's elected from the public. 

Frankly, and I have to say this, I actually feel that, 
and I wish, the hearing were on the very existence of the Board of 
Forestry as it is presently constructed. We only have to look at 
the depletion in Mendocino County to see that the Board of 
Forestry has not protected Mendocino County and other counties 
from severe depletion. 

In fact, the rigid process that Mr. Nelson alludes to 
when he talks about regulation has not helped but has hindered 
forest health in Mendocino County, and that should be noted. 

I think the question, and I hope the question that you 
will be asking each appointee is to state very clearly whether 
they understand the content of the Forest Practice Act, and 
whether they support consistently the intent of the Forest 
Practice Act. This is the law that should be guiding the actions 
of the Board of Forestry, and in practice it does not. 


Let me first say that I have the dubious fortune of 
having served in that purgatory that was mentioned, and that is 
local government at, I think, one of the worse times imaginable. 
I took office in 1989, just as demise was beginning for 
California. The tarnish was starting to appear on the Golden 
State, and certainly in Mendocino County we faced many 
difficulties . 

We have faced and recovered from a five million dollar 
deficit. At this level, that sounds like peanuts. For Mendocino 
County, which has a budget $100 million, it's a substantial 
amount . 

We've also faced substantial groundwater contamination, a 
major land fill, as well as other severe problems and setbacks, 
and having to furlough employees to make our budget. 

But nothing I have faced in Mendocino County has left me 
as disheartened and with a sense of defeat and cynicism that I 
felt on December 5th, 1994, when the Board of Forestry rejected 
Mendocino County's attempt to get approval for local rules. 

This was after a one year time, all of 1994, appearing 
regularly, both myself, other supervisors, staff people, in front 
of the Board, and to explain to them, to get them acquainted with 
our needs. We brought them to the county. It was a substantial 
effort that was put in by the local government and by the citizens 
of Mendocino County to convince the Board of Forestry that 
problems did exist. 

Mr. Nelson was part of the Board that we faced. We felt 
we were in our proper role, because the Forest Practice Act 
clearly states that there is a place for requests for special 


needs for localities that feel they need them. And I believe the 
Forest Practice Act states that the Board of Forestry shall 
approve requested special local rules that are proven to be 
consistent with the Forest Practice Act and are needed to correct 
and meet those special needs in a local area that's requesting the 
rules . 

Though we presented an excellent case, we were told over 
and over that Mendocino County did an excellent job, including 
from -- Mr. Nelson from the podium several times complimented us 
and our staff -- there was an unwillingness of the Board members 
to buck the Governor when it came down to the vote. 

And I appreciate what Mr. Nelson said, and he probably 
sincerely feels that he votes from his conscience. But he did 
not, I believe, do that on that day. And it was disheartening to 
have, at a little after 9:00 on that morning on December 5th, that 
the decision was to be made, to have the Assistant Secretary of 
Resources, Terry Gorton, come. She'd never been to one of the 
hearings where we had been, had never made testimony or discussed 
it in any way with us, but she came, and it was a clear message 
from the Governor: the Board should not support these rules and 
should let the proposed and existing — the newly approved state 
rules move ahead. 

We were very disappointed and disheartened. The Forest 
Practice Act sets the goal for California's timber lands of 
maximum sustained yield. Unfortunately, the Board of Forestry 
consistently ignores this direction and supports what I consider a 
really strong property rights view that each timber land owner 
should be able to define what that maximum sustained yield is. 


In Mendocino County, that means that depleted properties, 
such as those of L.P., some of which are way below five thousand 
board feet per acre, and let me compare that to Jackson 
demonstration forest, which has an inventory of well over forty 
thousand board feet per acre, so there's the contrast. But 
under -- we feel that under the current rules and the way that 
they were interpretted, the depleted land could also be producing 
something that's considered to fit under the maximum sustained 
yield definition, whether it was chips. 

We really strongly, coming from the Redwood region which 
at one time produced a product that was regarded so well 
throughout the world, and now is losing some of that regard 
because of practices, we really feel that this does not -- this 
kind of interpretation by the Board of Forestry is not helpful to 
Mendocino County or to the state. 

I heard Mr. Nelson several times at the hearings state 
that he would never support any regulations that would lessen the 
private property owner's control of when, how, and how much he 
wants to harvest. 

He speaks of the SYPs, and that somehow they are going to 
rescue counties like Mendocino County. CDF has acknowledged that 
the first SYP presented by L.P. allows -- is not sustained yield, 
it's sustained depletion. It is allowing the practice to 
continue . 

So, I believe that when you allow a land owner to ignore 
the public trust, the trust that we have placed in them preserving 
our resources for the future, you have to regulate that, because 
they, on their own, do not always make the right decisions. 


I think the Board of Forestry as a whole has difficulty 
accepting that the Forest Practice Act does provide for the 
regulation of how much could be harvested, not only how and what 
those prescriptive practices are. 

I also had a problem, Mr. Nelson did not attend a very 
important public hearing that was held in Ukiah. It took all day 
There were many, many people on both sides that spoke. And I do 
believe the public process is a very, very important part of what 
the Board of Forestry does. 

Just generally, industry has been able to sway the Board 
of Forestry because of their technical knowledge of forestry, 
which other members often don't have, but should have. This needs 
to be balanced on the Board with none industrial appointments with 
background in forestry. 

The industry, and this is not particularly Mr. Nelson's 
fault, is given access that'the public is not given access to. I 
was very rudely prevented, on December 5th, from approaching the 
podium by a bailiff who knew who I was, and then, right after me, 
just waved Mr. Bobby Simpson from L.P. right through, you know, 
after practically wanting to frisk me. 

It's that kind of sense the public feels in front of the 
Board of Forestry. If you're the public, if you're a local 
elected official, you don't count. If you're industry, we'll talk 
to you behind the scene, we'll call you. 

But we were very strongly instructed not to approach any 
of the members of the Board, and they were told that they should 
not talk with us. Yet we know, and we have documentation, that 
there were discussions happening all the time between industry anc 


the Board that we were not privy to. 

So, you have to understand why I have this very strong 
sense of both dismay and cynicism anymore. I tell you, it took 
the heart out of me as far as a local official. I will be 
retiring at the end of this year, after eight years in local 
government. And as Colin Powell said, you have to have fire in 
the belly for these jobs, and my fire went out, especially on that 
day when I saw how we were treated after a year in front of the 
Board, making our case. 

So, I would like to give opportunity for others. They 
will fill in the picture to you, but these were comments I feel I 
had to make. I got up at 5:00 o'clock this morning to get here 
and make them to you, and thank you for the opportunity. 

SENATOR BEVERLY: Question by Senator Lewis. 

SENATOR LEWIS: Supervisor, forgive me. I think we're 
kind of at a loss here because I'm not familiar with the Mendocino 
plan which you were trying to do. 

Can you, maybe in a nutshell, give me an idea of what 
regulations you're referring to- imposed on private land owners? 

MS. HENRY: It was based around the two percent of 
inventory rule, which meant that there would be -- harvest Would 
not exceed two percent of inventory every year, or 20 percent in 
ten years . 

So, it was actually managing the amount of harvest. 

SENATOR LEWIS: Two percent of private land? 

MS. HENRY: Mr. Burkhart, who will be speaking, was the 
author of that. 

The rules were brought forward after long consideration 


that started with the formation of the Forestry Advisory Committee 
in Mendocino County in 1989. So between 1989 and when they were 
presented to the Board in 1994, there were many meetings. 

SENATOR LEWIS: Would you define for me what this two 
percent rule means. 

MS. HENRY: That you would not harvest — 

SENATOR LEWIS: A private land owner — 

MS. HENRY: -- would not harvest — 

SENATOR LEWIS: — could only harvest two percent of his 
inventory in a given year. 

MS. HENRY: Yes, to allow — to allow for growth. 

It's difficult to describe and talk about a very complex 
subject like forestry. You can have a lot of figures thrown at 
you, like, well, we're growing, you know, 10-15 percent. Why do 
you only want us to cut two percent. 

Well, that's because young timber, young trees, very 
small trees, do have a very high growth rate. It could be 
described in double digits. It doesn't mean that you're looking 
at trees that should be harvested. 

So, what we're encouraging is a longer rotation, and that 
trees -- actually that timber reaches that potential maximum 
sustained yield before it's harvested. 

Mendocino County now is falling into -- from being a top 
producer as far as Redwood products, we are now recognized as, I 
think, going to be a leader in the chip industry. And for me as 
Supervisor, that is very discouraging, that our lands that can 
grow Redwood, can grow Doug fir, are now being used in what's 
called dumpster logging where you scrape up everything that's on 


the ground, and run it through a chipper to be glued back together 
into boards . 

SENATOR LEWIS: Can I ask Mr. Nelson, it was alleged in 
the Supervisor's testimony that you did not vote your conscience 
when it came to the Mendocino Plan. 

Can I just ask you, did you vote your conscience or did 
you not? 

MR. NELSON: I always vote my conscience, Senator, and I 
did in fact vote my conscience, and I was not influenced by anyone 
in the vote for Mendocino. 

If I might also respond to a couple of things. 
Supervisor Henry is exactly correct. I have made numerous 
statements that private land owners should be allowed to harvest 
and decide what products they are going to produce on their land. 

But I have also always qualified that with first, and 
this is what the rules that the state, and which are statewide, 
provide for. First they must prove that they've protected the 
public trust resources of the state, the water, the air, to some 
extent the wildlife, the soil productivity. Those must be 
disclosed as to how those would be protected. 

Secondly, and this comes with the new regulations that 
came on the heels of the failed legislation, they must show it is 
sustainable over time. Once you have shown both those things, I 
believe that the private land owner must have the flexibility, 
having shown those things, to produce the products he or she so 
chooses . 

My real argument with Mendocino County -- there's no 
doubt in my mind that their proposal would have done what they 


wanted, but in my opinion they had crossed over the line, because 
additionally, beyond protecting the public trust resources and 
showing sustainability, they also wanted to limit, and in effect, 
tell the land owner which products they would be producing. I, 
frankly, cannot go along with that. 

I think that I made it fairly clear early on that I had a 
real problem with that approach. 

SENATOR BEVERLY: Senator Petris. 

SENATOR PETRIS: I was concerned about her comment that 
they didn't seem to be very welcomed in getting access because of 
their particular viewpoint. 

Could you comment on that? 

MR. NELSON: Well, I think it's unfortunate. 

If I personally made you feel that way, I'm very sorry 
for it. 

There have been a lot of points where we did not agree 
with the board, and that's going to become obvious here, I'm 
sure . 

I felt, myself personally anyway, I've done an admirable 
job of telling them that there were differences, but trying to 
remain civil about it, and trying to show them the respect they 
deserve . 

I live in a small county in Redding. I know a lot of 
County Supervisors. They have a tough job. I also have a lot of 
the rural feelings that, when you come up against a large state 
entity, it can be intimidating, and they can seem very cold. I 
understand those things, and I think it's unfortunate that that 


I personally don't think that I am at fault. 

MS. HENRY: May I make a comment?. 

SENATOR BEVERLY: Let's keep it brief, please. 

MS. HENRY: I would agree that Mr. Nelson was never rude 
to us personally. 

I wants to explain that I think also the role of the 
Executive Director at the Board of Forestry, Mr. Cromwell, has a 
lot to do with how things happen. 

As you know, as you're elected or appointed, you may come 
and go with the will of the people or who you're appointed by. 

The roll of Executive Director remains there, and that 
person holds all the information, has access, and knows all the 
ins and outs within the workings of Sacramento and elsewhere. 

And we have an Executive Director at the helm who's been 
there for 18 years, and who -- I hope some of the others will 
backup some of the comments -- was the leader in keeping us from 
having access to information. At one point, published information 
that was not correct, which was circulated through the regular 
channels of CDF, which was never retracted in a manner that gave 
people notice that there were changes. This had substantial 
impact on the case we were making. 

So, we felt many times that we were impeded. Letters 
were not presented that we should have had and had been able to 
answer to until the day of hearing. There were many, many ways 
that we felt. You don't have time to hear them. 

But I do believe for a board to be effective, they also 
need to be working with the staff, who also hold in great esteem 
the public and dealing with the public. And I don't feel that Mr. 


Cromwell did that in his treatment of Mendocino County. 

I know he's not up for appointment. 

SENATOR BEVERLY: Senator Ayala. 

SENATOR AYALA: I had the opportunity to visit with both 
Mr. Nelson and Mr. Rogers. I was under the impression, after a 
visit with them, that local governments have no role in 
introducing a plan of their own. 

But now I have information that tells me that pursuant to 
the California Forest Practices Act, a county that does not 
believe that the over-all state rules address their particular 
needs can adopt separate rules to govern their timber land. 

This is Public Resources Code Section 4516.5. 

So, I don't understand. Your plan submitted by your 
board took a number of years --. 

MS. HENRY: And it was developed by professional 
foresters . 

SENATOR AYALA: And the problem was what? What were you 
trying to protect that the forestry didn't do? 

MS. HENRY: The Forest Practices Act, as implemented by 
the Board of Forestry and regulated by CDF, did not protect 
Mendocino County from substantial depletion of its timber 
products. Its timber -- the growth rate, and other than for very 
young trees, has declined in actual standing timber. 

We are, in a sense, a third world nation. It's a cut and 
run industry in Mendocino County. We felt that it needed to 
stop. There needed to be a period when there was no longer 
depletion and there was actual addition to the inventory. 

That is what we attempted to portray in a resolution 


passed by the Board of Supervisors, and that is what we attempted 
to show. 

SENATOR AYALA: I hope somebody can tell me what that 
means. Does that mean a County Board of Supervisors can overrule 
the state board? 

■MS. HENRY: No. I think the language says that the state 
board shall approve special rules or local rules -- I don't know 
exactly how that's stated — when a local area requests if they 
are consistent with the Forest Practice Act and if they show and 
prove the need. 

And we believe we showed both elements. 

SENATOR AYALA: The paper I have, it says that pursuant 
to California forest practices, a county that does not believe 
that the over-all state rules address particular needs can adopt 
separate rules to govern its timber lands. 

It seems to me like you have the authority to overrule? 

MS. HENRY: We have to go to the Board of Forestry. They 
form the regulations. 

SENATOR AYALA: You're saying that when you presented 
your plan, that these folks ignore the whole thing. 

MS. HENRY: Basically, many of them. 

SENATOR AYALA: They pay attention to your request? 

MS. HENRY: We got three votes. The presence on the 
Board of Forestry of Bob Heald, who is a forester and manages the 
Blodgett Forest for the University of California at Berkeley, his 
knowledge of forestry, I think, helped guide a number of the 
members. And I have to say, Mr. Rogers also listened and was 
brought along, you know, with understanding what Mendocino County 


was trying to do and was supportive. 

SENATOR AYALA: This says that in 1990, in Mendocino, at 
the behest of the Board of Forestry, they decided to draft special 
rules because of the unique problems they faced regarding the 
impact of clear cutting on coastal streams and fisheries. 

I'm still not clear whether, if the Board ruled a certain 
way, the State Board, that the county can overrule if they've got 
a special problem? 

MS. HENRY: You can't overrule. You can request special 
rules . 

SENATOR AYALA: But they don't have to be approved. 

SENATOR BEVERLY: Let's have Mr. Nelson comment on that. 

MR. NELSON: I might be be able to help you with that. 

You've got it write-up to that point. The county can 
request of the State Board, who has the over-all authority, 
special rules. 

The Board, then, has to look at the conditions for 
approving those rules, the two conditions, and Liz had one of them 
almost verbatim, are that you have to show — the county must show 
the necessity for rules, the need for the rules. 

Secondly, the Board must be convinced that the rules will 
meet the intent of the Forest Practices Act. That really is where 
the issue lies. 

I did not support the county package because I did not 
feel that they met the intent of the Forest Practices Act. 
Therefore, I voted no. 

SENATOR AYALA: Both you and Mr. Rogers supported the 
concept submitted by the Board. 


The Board has a right to turn you down, otherwise every 
county would have their own plan. 

MS. HENRY: Certainly. 

SENATOR AYALA: It would be difficult to implement. 

MS. HENRY: But we believed -- we believed then and we 
believe now, that findings need to be made. I'm not sure -- 

SENATOR AYALA: Your problem is that home rule was not 
addressed. That you came in there and you were not -- 

MS. HENRY: Home rule does not. 

SENATOR AYALA: I'm a strong supporter of home rule. 
That's where I'm coming from. 

My point is, you're telling us that when you appeared 
before the Board, they were not very sympathetic; they ignored 
your request and just didn't think too much of your plan, or 

MS. HENRY: They certainly heard it. We went through a 
whole year of hearings, a tremendous amount of testimony. We were 
encouraged at times because there seemed to be an understanding. 
There were visits to Mendocino county. I don't believe Mr. Nelson 
was there on that visit, and there were comments made often that 
yes, they understood the need. They could see in need on the 
ground in Mendocino County. But they just were not going to 
support . 

SENATOR AYALA: I want to pinpoint the problem. 

You're telling us that you appeared before this Board 
with your own plan, and they turned it down. They had a right to 
turn it down, did they not? 

MS. HENRY: I believe so. It depends how you interpret 


It says the Board shall, if they find it's not consistent and 
there's no need. 

It's my belief that the Board of Forestry did not make 
those findings. If they did, it's not in the record. There were 
very few comments made by most of the Board members about their 

SENATOR AYALA: Reading from this again, this is what 
confuses me. It says that if the county does not believe that the 
over-all state rules address particular needs, they can adopt 
their own separate rules to govern their timber lands. 

To me, it tells me they can overrule the 

MS. HENRY: No, this is unfortunate. 

At one point counties could, and there were county rules 
established. I don't know what year. The system has changed. 

SENATOR AYALA: Eve'ry county can have their own rules as 
they go along? They have certain findings to make it stick. 

MS. HENRY: If approved by the Board of Forestry. Santa 
Cruz has county rules. Those were established — 

SENATOR AYALA: It says here that they can do it without 
approval of the Board. 

MS. HENRY: We wish we could. 

SENATOR BEVERLY: Let's here from further witnesses. 
They might shed more light on it. 

Next witness, please. 

MR. PETERSON: Good afternoon. My name is Charles 
Peterson. I'm the 5th District representative and the vice chair 
of the Mendocino County Board of Supervisors. 


The process about how all this comes about is long and 
complex. What I know is that I was Supervisor-elect on the day of 
the hearings. I'd been through the election; I'd been elected to 
an open seat in the 5th District. 

I had been involved in the process of attempting to 
improve forest practices in Mendocino County for the prior twenty 
years. In fact, forestry issues were the underlying issue in the 
campaign that got me elected, and these rules and my support for 
them was the underlying basis relative to the forestry issue. 

I watched the process go on in Mendocino County go on for 
years, where representatives of the California Department of 
Forestry, of other state agencies, of county agencies, of 
environmental groups, of the timber corporations who were major 
property owners in Mendocino County, sitting at the table, going 
through the intensely difficult process of coming to all the 
compromises and deciding upon a plan. 

I would also like to point out that Mendocino County went 
through this process, and it was a very difficult one for 
everyone . 

Based upon the fact that there was recognition at the 
state as well as the local level that severe depletion of 
resources had occurred in Mendocino County, I'm talking about an 
economic issue that in ten years changed our employment in timber, 
directly in timber, by cutting it by almost two-thirds. In 
Mendocino County that means from approximately 3, 000 jobs to 1300 
jobs . 

You have to understand that in a county of less than with 
100,000 people, this has been a major and intense impact. 


What this Board of Supervisors has been attempting to do 
for years is to establish a system of forestry regulation in 
Mendocino County that will ensure the long-term viability and 
economy of the communities and the companies that are involved and 
a stable basis of employment for people who live there. 

After four years of going through this process, and 
appearing before Board of Forestry, and basically with recognition 
from the Board of Forestry that we had a depletion problem, and 
with encouragement from the Board of Forestry to go through this 
process, we came back not with a complaint, but with a solution. 

What I found to be one of the most appalling things that I 
have ever seen in a public meeting, it was as though the prior 
four years had never existed, had evaporated in a puff of smoke 
with a few noes. No one on the Board, including Mr. Nelson, as 
far as I'm concerned, but most of the board would not even bother 
to pay lip service as to what the reasons were for saying no, 
except we don't think it will work. 

What were those prior four years about? What were all 
those foresters sitting at table, and the companies, and everybody 
else all about. 

I feel that we were treated grotesquely unfairly. I 
understand that fairness is one thing. I understand that as a 
member of Board of Supervisors, when I go in there, quite often my 
mind is made up. I'm informed on issues. I want to listen to the 
public testimony to see how it might change my attitude, or change 
in some way to wording of the vote. I understand that. 

But I also understand that appearance in public office is 
everything. What we had here was a complete lack of even an 


appearance of fairness. That's what I'm here about. 

And I think that throughout the State of California, 
there are probably innumerable people who can represent the timber 
industry who understand that at least the appearance of fairness 
is important. 

And I think that irrespective of your individual 
positions upon natural resource issues or environmental issues, or 
economic issues, that it is possible for the Governor to bring 
somebody before you who at least understands that. 

That's why I'm here. That is why I'm opposing the 
reappointment of Mr. Nelson not Board. 

SENATOR BEVERLY: Thank you very much. 

Any questions? Senator Lewis. 

SENATOR LEWIS: Can you give me an idea of what 
percentage of the forest land in Mendocino County is privately 

MR. PETERSON: Well, the two largest timber owners, 
Georgia Pacific and Louisiana Pacific, own just under half a 
million acres. I'm not sure you know the breakdown between 
government and privately, but a major portion of the prime forest 
land in Mendocino County is owned privately. 

SENATOR LEWIS: More than half? 

MR. PETERSON: I'm going to defer. There are other people 
here who are going to speak who actually know those numbers. 

I admit that as an elected official, I depend very much 
on staff and those experts that I rely on for information. 

SENATOR LEWIS: One other question about your testimony 
with regards to, you say the employment in timber-related jobs 


right now is 1300? 

MR. PETERSON: That was the figure approximately a year 
ago now. 

SENATOR LEWIS: If the two percent limitation rule had 
been adopted/ is it your contention that employment would have 

MR. PETERSON: Over time it would have risen constantly. 
Yes, that's my contention. 

I feel that there was a possibility that in the very 
short-term that we could have actually lost further jobs. That is 
a potential, but I'm absolutely certain that with the two percent 
rule, that from that point forward there will be nothing but a 
building of inventory, a building of the annual cut, the amount 
that was cut, and a building of the jobs and the economic resource 
in Mendocino County. 

There was another question you asked earlier about the 
two percent. 

SENATOR LEWIS: Just a question on that two percent. If I 
understood the previous Superivisor who said the growth was at ten 
percent a year, and if you're limiting the cutting at two percent 
per year, it seems that you're not maximizing the potential for 
harvesting, and therefore — 

MR. PETERSON: A tree that is one year old grows at 200 
percent and produces nothing you can cut. A tree, a Redwood tree 
at 120 years old is growing at one percent, and is adding the most 
amount of board feet per acre that it ever does in its life. 

So percent of what, is the question. So, the percent by 
itself means nothing, but a percent of the forest that you're 


talking about means everything. 

In other words, a forest -- if you are cutting a forest 
at an average of 40 years, and you're cutting, let's say, four or 
five percent of that, with the amount of volume you have on that 
acreage, it's less than if you're cutting a forest that has an 
average age of 100 years and you're cutting two percent. You're 
actually cutting more wood. 

Also relative to the rule, it was two percent per year, 
but that's 20 percent in a decade of your current inventory at the 
time of the numbers you're talking about. That means cutting 100 
percent of your current inventory in 50 years, which quite 
honestly, is far less than maximum sustained yield. 

So, the question is not the percent. The question is, 
how many board feet per acre per year are you producing on the 

SENATOR LEWIS: I think your math was wrong. If it was 
100 percent over 50 years, there wouldn't be anything left. 

MR. PETERSON: Well, obviously, the forest continues to 

SENATOR BEVERLY: Let's hear from the next witness. 
You'll have an opportunity to respond, Mr. Nelson. 

MS. BAILEY: My name is Linda Bailey. I was a member of 
-- I've been member all for forestry committees that the Board of 
Supervisors in Mendocino County has set up for the last decade. 

I was a member of the Forest Advisory Committee, and I 
also had the privilege of serving the Board of Supervisors as 
staff in presenting their proposal to the Board of Forestry. 

I would also like to add, on personal note, that I do 


come from a logging family, so that I'm not a tree hugger or one 
that's opposed to productive use of the forest. 

That experience with the Board of Forestry made me very 
cynical about state government in general, and the Board of 
Forestry in particular. 

Prior to this time I, naively perhaps, actually had faith 
that the democratic process worked. I have had no further 
dealings with the Board of Forestry since January of '95 because I 
am deeply convinced it's a profound waste of time to submit 
comments or to testify at any of their proposals [sic] and I will 
not participate in the charade that public input is considered, or 
that the public interest is safeguarded in any of its proceedings 
or deliberations. 

A lot of this is just based on the way they handle their 
affairs. It is substance neutral. 

The reason that Mendocino County was there was because 
they were exercising their statutory right to request special 
rules. Those rules, by virtue of government principles, have to 
be stricter than what the Board of Forestry has. So, we have to 
come in and ask for strict rules to address a local condition. 

My conclusion, after dealing with that Board, is that as 
it's currently configured, it's absolutely contemptuous of local 
government, it's comtemptuous of the public, it's contemptuous of 
the public interest and the law, and by implication, of you who 
make the laws. 

I looked for a copy of my Forest Practice Act before I 
came up here so that I could give you an exact quote of the intent 
of the Forest Practice Act. I think I threw it away because I 


1 deem it irrelevant to anything that's going on in forestry today. 

2 The intent of the Forest Act, the whole reason that this 

3 Board exists is so that we can have maximum sustained production 

4 of high quality timber products. You cannot achieve that without 

5 putting some controls of the Rate of cut on private land owners. 

6 That is the policy of the State Legislature. 

7 Because Mr. Nelson in his conscience does not agree with 

8 that, he certainly can hold that feeling. I mean, anybody can do 

9 what they want. But he should not sit on a Board that's charged 

10 with an aim which is diametrically opposed to what he believes. 

11 I also find that the claim that private property owners 

12 should be able to determine their own product rings a little 

13 hollow when they've been receiving for decades tax subsidies for 

14 them to grow timber, and timber has a specific meaning, and it 

15 doesn't mean wood and chips. 

16 For that reason alone, I don't believe that Tom Nelson 

17 should be on that Board of Forestry because he doesn't believe 

18 what it's there for. He doesn't believe in it. 

19 I would like to just briefly run down through some of the 

20 events that happened to the County of Mendocino in the process of 

21 presenting this proposal to the Board of Forestry. And the Board 

22 Forestry actually helped us develop the proposal. They sent staff 

23 persons down; we developed these rules. They were analyzed by 

24 every single forestry expert that you can name across the state of 

25 California. They were analyzed and modeled by a team of experts 

26 that were acceptable alike to industry, environmentalists, and 

27 public members of the Forest Advisory Committee, and a team of 

28 computer experts from the University of California School of 



This -- people said that it was probably the best rule 
package that the Board -- had ever come before the Board. And Mr. 
Nelson told you it would do what it was designed to do. What it 
was designed to do, Mr. Peterson has certainly told you very 

I mean, our forests have been going down hill; 
unemployment has been going down hill. Mills have been going down 

We have in Mendocino County, half of the Redwood land in 
the whole state; half of it is in Mendocino County. It's the most 
productive timber land in the world. 

And the Board of Forestry is just, you know, leading us 
in the direction where what they want to do is set up chipping 
plants now. 

Okay, but anyway, back to what happened. First of all, 
the staff interpreted the deadline for action, contrary to the 
plain language of the statute, that it would occur after the 
gubernatorial election, not before. 

A letter from the Board of Supervisors to the Board on 
this point went unanswered, so what were they supposed to do? Stop 
and run to the courts and litigate that before we'd even begun? 

The first day we appeared before the Board, it was 
announced that the Board was walled off. That I, the staff of the 
Board of Supervisors, could not talk individually to any member of 
that Board of Forestry. That our conversations would be limited 
to what occured within the Board meeting, open meetings. 

I couldn't talk to them, the Supervisors couldn't talk to 


them, and nobody from the general public could talk to them. This 
was a total subversion of the intent of the Open Meeting Act. 
This was not a quasi judicial thing; this was in the rule-making 
function. Open Meeting isn't supposed to wall you off from access 
to the people that are making your laws. 

We had difficulty in getting materials in a timely 
Fashion. By the time we came to the final vote in December, cost 
had been made a major issue. I had written a letter requesting 
that the cost analysis that they had originally published be 
redone so that it was in accordance with the laws and regulations 
and based on reasonable facts. I specifically requested a 
response to my letter before the meeting was held, before the 
December meeting was held. 

Imagine my surprise when I'm at the meeting and we're 
standing up, and they're reading the response to my letter. And 
they're entering it in the record, and I never even got it. And 
it was in the Board of Forestry office when they FAXed me other 
materials. The meeting was held on a Monday, and Friday afternoon 
at 4:00 o'clock, they FAXed me over the materials. Golly, that 
letter wasn't there, a crucial central issue. 

No written response was ever made to our request, or to 
any of the comments of any of the public, and the comments were 
voluminous, and they were thoughtful, and they were from respected 
professionals, and they were from knowledgeable members of the 
public, and they were from ordinary citizens. No response was 
made to these. 

No analysis either prior to or after the decision. This 
is contrary to CEQA's APA. Talking to that Board is like shouting 


down a well. They just voted no and walked away. And apparently 
they do this all the time. 


SENATOR AYALA: I think we have the whole Board on 
trial. We only have two members here. 

Would you address these folks' performances, not the 
Board itself. There's nothing we can do about the Board, but we 
have two members here. I really would appreciate it if you would 
zero in on the two we have before us and go from there. 

MS. BAILEY: Okay, my point is that this Board needs to 
be changed. And you've got to start. You've got two before you 
now, and I understand you've got two coming up, and I would like 
these records to be entered, these comments to be considered when 
you consider those subsequent ones. 

In terms of Mr. Nelson, he's very proud of sustained 
yield practice, which is not sustained yield at all. It is — our 
major land owner, who has 300,000 acres of timber land in 
Mendocino County, is going to further deplete their already badly 
depleted land under this. This isn't sustained yield. 

He's proud of the sensitive watershed, that in fact is 
the most onerous procedure that you could possibly imagine to be 
followed through. It places an incredible burden on anybody from 
the area who wants to put a sensitive watershed in. I sat and 
listened to the Board deal with sensitive fisheries nomination by 
Fish and Game. 

Fundamentally, I don't think Mr. Nelson should be on this 
Board because he is opposed to this law. I think that when you 
ask -- before you confirm anybody to this Board, I think that they 


should meet three basic qualifications. One is, that they should 
believe in the law that they're put in charge of enforcing, and 
that they should agree to follow other state laws, meaning that 
the Board also -- I mean, I didn't hear Mr. Nelson object when the 
APA was violated by Board procedures. So therefore, he is party 
to it . 

I mean, they published the 45 day notice that they're 
required to do under Administrative Procedures Act, which was 
based on totally bogus acts, hypothetical, that distorted and 
poisoned whole public debate. It was false. 

Mr. Nelson sits there and lets that go on, so I have to 
assume that he agrees with it in some way. 

So, I think they need to look at three things. And I 
think they need to subscribe to the intent of the law and agree to 
follow other state laws. 

I think that they should be knowledgeable about forestry, 
and certainly in terms of Mr. Nelson's appointment, I mean, he is 
a knowledgeable in forestry, and if he fits the category. I think 
when you consider Mr. Rogers, you should see whether he is 
knowledgeable about forestry. And I think that they should truly 
fit the category. 

And I think that the third thing that they should do is, 
I think that they should understand the rule of the executive 
branch. And that when they are to execute the law, it doesn't 
mean to kill it. It means to put it into effect. 

CHAIRMAN LOCKYER: Are we referring to 4516.5 (a) is the 
exhibit that we have in our materials that talks about counties 
developing local plans. Is that what -- 


MS. BAILEY: There's that law, but then there's also the 
Administrative Procedures act. 

CHAIRMAN LOCKYER: Is that the issue with respect to the 
local plan that we're talking about, that he disregarded the local 

MS. BAILEY: Yes, but it's also just -- I mean, aside 
from whether he voted yes or no on that, it's just also the way 
the Board proceeds. And the fact that he is opposed to this law. 

CHAIRMAN LOCKYER: Opposed to what law. 

MS. BAILEY: He's opposed to the intent of Forest 
Practices Act. 

CHAIRMAN LOCKYER: I've not heard any evidence that he's 
opposed to the Forest Practices Act. 

MS. BAILEY: He doesn't believe that land owners should 
be told what kind of product. Well, the Legislature — the Forest 
Practices Act says high quality timber products. 

CHAIRMAN LOCKYER: Okay, perhaps, sir, you could comment 
on that. 

MR. NELSON: I really would. I had several, but I'll wait 
in the interests of time. 

That particular point, I think, is the central part of 
the issue. 

I do in fact believe in the Forest Practices Act which I 
believe she's referring to, the Z 'Berg-Negedly Act. That has 
probably been the subject of most of the controversy you've heard 
about hear. 

It says maximum sustained production of high quality 
timber products, but it does not define that. I work, when I'm 


not on the Board, for the forest products industry. I think I 
know, at least in my mind, what a forest product is. This desk 
and this chair are timber products. A big tree is not a timber 
product, in my opinion. 

I believe that the County feels that a large tree is a 
timber product, and there's a fundamental difference there. 

So, in fact, the reason that I did vote no against the 
rules was because I did not believe that their rules met the 
intent of the Forest Practice Act, which is an act which I really 
do believe in. 

There's also a second part of the Forest Practice Act, 
and this is where you get into Senator Lewis's question about the 
percent of inventory. 

It is my belief that I stated early on through the 
process with the County Supervisors that the private land owners 
have an obligation to protect the public trust resources. The 
statewide rules which we passed also included that you must show 
that it is sustainable. That is an obligation I believe is placed 
on every private land owner of forest land in the state. 

The County rules went past that to regulated the proposed 
regulations for the amount of their inventory that they would be 
allowed to harvest. Loosely translated, that's where they went to 
what products you're going to produce. In effect, that's what it 
does . 

My problem is, and I think that it's also -- 

CHAIRMAN LOCKYER: Aren't they the same? 

MR. NELSON: No, they're not. 

CHAIRMAN LOCKYER: If you're obligated to have a 


sustainable yield, don't you then have to have some plan that 
tells you what you can harvest and how much in order to sustain 
the yield? 

MR. NELSON: The statewide rules provide for that. The 
problem is that when you set an arbitrary rate, such as two 
percent, what do you do with the private land owner, who's been 
encouraged to keep that land in forest land, who's made 
investments on it, and who is now growing his trees, his or her 
trees, at a rate of four or five percent. 

They've made investments, and they have done what the 
state has asked them, which is to keep it in forest land and not 
develop it. Now you're telling them, well, that's great, but 
you're growing it at a higher rate, but we're only going to allow 
you to cut it at two percent. 

That's where they lost me. 

CHAIRMAN LOCKYER: - This two percent rule was what you 
were objecting to? 

MR. NELSON: Yeah, and I think it's also — during the 
course of all this public debate, there's kind of a misleading 
premise here that there was this giant consensus in Mendocino 
County. I did not see that giant concensus. Notably absent in 
any of this language that came out of the committee was any strong 
supports from the people who owned the land in that county, small 
land owners and the large land owners. 

I think it's for the very reason that I just mentioned tc 
you: they felt that they were being punished by not being 
allowed to harvest up to the level they were growing. 

Except the fact that they should not be harvesting beyonc 


that, and in fact, some of the implications that that had happened 
in the past, we felt we fixed with the statewide rules. 

But certainly, if you're encouraging them for prudent 
stewardship to keep that land as forest land and to grow trees, 
why should they be punished by only being allowed to harvest at a 
lesser rate than what they're growing? Up to that rate was what I 
was in favor of, and that was not allowed to go through. 

MS. BAILEY: One brief comment. 

The gravity of my complaint against Mr. Nelson is not 
that he didn't adopt our County rules. It's the way in which the 
Board which he is a member of, conducts its business, which is in 
violation of law. 

And I -- it -- while I was there, I also saw them vote on 
another matter in which they were advised that what they were 
voting on was in violation of three separate state laws. They 
were so advised by two separate state agencies, and I believe it 
was a unanimous vote. 

CHAIRMAN LOCKYER: What I'm hoping we'll be able to do is 
to conclude with the Mendocino issue specifically. I want to make 
sure everyone has a chance to comment on both sides, but so that 
we're not just repetitive in going back to that again and again. 

Then, if there are any other issues that are relevant, or 
other testimony that would be sort of a different topic or 
something, to make sure that gets on the record. 

Yes, sir. 

MR. SUGAWARA: First of all, I want to thank you for 
holding this hearing. 

My name is Seiji Sugawara. I'm the 1st District 


Supervisor in Mendocino County. I've become familiar with Mr. 
Nelson, and Mr. Rogers, and the Board of Forestry through the same 
process of trying to get local rules adopted. 

You know, I'm not a cynical person by nature. But I have 
to say that the process made it difficult to retain that posture. 

I think the issue of the uneven playing fields in terms 
of access was very discouraging. I think having Ms. Terry Gorton 
coming down before the vote to actually give instructions was 
totally embarrassing to me. 

In the interests of time, I'm going to make comments 
specifically about Mr. Nelson, and also Mr. Rogers so that I don't 
have to testify twice. 


MR. SUGAWARA: Both men were courteous. I felt that in 
the case of Mr. Rogers, he listened. He was out there to listen 
to the public in Ukiah. He" was on the ground to look at the 
depleted forest. Mr. Nelson was not. 

I believe that there were a number of members on the 
Board of Forestry who at least recognized that the problem was 
real, that it needed to be addressed, and made sincere efforts to 
do so, even if they did not agree with the particular solution 
that we had proposed. And I think Mr. Rogers was among them. 

But my sense of Mr. Nelson's position was that, you know, 
it would be all right if all of the timber land owners decided to 
convert their land to producing commodity fiber in the form of 
young trees; that was perfectly fine. 

Well, to suggest that you can have that kind of business 
and not have severe impact on the public trust values, I think — 


and I'm no expert, but I don't think it takes a genius to 
recognize that you can't have just young trees being cut in 20 
year rotations and expect that you're going to have the same kind 
of public trust values maintained as provided by a whole mixed age 
forest . 

And, you know, there's also economic impact. We have a 
region that grows half the Redwood in the world. If it's not a 
commodity, it's a specialty crop. Our Douglas fir is a specialty 

When you reduce it to producing commodity fibers, the 
economic impact on the County in general, as well as County 
government, who relies on income from timber yield tax, is 
impacted very severely because commodity fiber has very little 
value at the mills and results in very little income to the County 
government . 

Personally, and I'm not speaking for anyone else but 
myself, I feel that while Mr. Rogers did not share our vision in 
terms of our specific solution to the problem, I feel that he 
demonstrated every effort to come up with alternatives, and to at 
least try to deal with the problem of depletion of our resources. 

I did not have the same feeling regarding Mr.. Nelson. 
And, you know, I have real problems with this notion of being 
industry representative, whether we're talking about the Board of 
Forestry or anything else. We should have public representatives 
who happen to be from that industry. 

I don't see that on this Board, and I don't see that on 
other state boards, I might mention. 

CHAIRMAN LOCKYER: Sir, do you distinguish between Mr. 


Nelson and Mr. Rogers anyway in terms of philosophy, access to 
local opinion? Are they essentially indistinguishable, or are 
there differences that you would want us to know? 

MR. SUGAWARA: I think there is — I'm not sure. You 
know, I don't know them well. 

CHAIRMAN LOCKYER: No, I mean just from your observation? 

MR. SUGAWARA: My observation was that Mr. Rogers 
wrestled with the problem. That there was some effort to come up 
with alternatives. 

I think Mr. Nelson, as he has expressed, feels that if 
the land owners want to grow commodity items, that's okay. That's 
their business. 

I suggest that there's a public trust interest involved 
and a responsibility to make a valuable resource as productive as 
it is can be. 



SENATOR LEWIS: Follow-up question to Senator Lockyer's 
question in terms of your distinguishing between the two 
appointees . 

Do you support the confirmation of Mr. Rogers? 
MR. SUGAWARA: I personally do. 

With that, I want to thank you. Because you folks had a 
lot of technical questions, I'm not a technical person. I can see 
a forest when I see it, but that's about it — I'd like to ask 
Dr. Romm to make his presentation and allow you to ask him 
questions about the two percent POY and so forth. 

MR. NELSON: Mr. Chairman, while he's coming up, could I 



CHAIRMAN LOCKYER: I want to make sure you can respond to 
any comments that were made. 

SENATOR AYALA: Question for the witness. 

Would you define for me public trust interest. 

MR. SUGAWARA: Sure. The fisheries, for instance. The 
viability of the fisheries, both sport and commercial; the 
ecological diversity of all your flora and fauna; and clean air, 
unpolluted streams, high quality water. Also, economic 
productivity is a public interest. 

SENATOR AYALA: Thank you. 


MR. NELSON: I just want, and I'll be very brief, it's 
been brought up two or maybe three times about how I was not in 
attendance at the Board meeting in Ukiah. 

That is correct. I was not at the meeting there. I had 
scheduled vacation. 

I did, however, since I could not attend, get the taped 
transcripts of that. There were like -- I think there were nine 
different tapes, and I did in fact listen to those tapes prior to 
anything. Just for the record. 

CHAIRMAN LOCKYER: Do you have any comment on the 
philosophy that's been expressed of trying to maintain mixed 
forest . 

I guess, perhaps, to add some numbers to the question, 
it's my understanding there are approximately a million acres of 
soft woods that would be largely Redwood and Douglas fir that have 
been harvested in California. There's essentially no replacement 


plan for those trees. 

Is that alarming? Is that accurate? Does the Board feel 
any responsibility, or you personally, toward that trend, if 
that's an accurate description of the trend. 

MR. NELSON: It would be alarming if it wasn't for the 
fact that it is not accurate, and it hasn't been accurate for over 
20 years. The Z ' Berg-Negedly Act provided that you must restock 
the land. We were one of the pioneer states in getting 
legislation like that. So, that is not accurate. 

CHAIRMAN LOCKYER: Does that restock mean from that day 
forward, or is it retroactive? That is, do you try to restock for 
prior generation's use, or how does that work? 

MR. NELSON: To some extent you can do that. It's called 
rehabilitation. But essentially, you're dealing with a functional 
equivalent of an EIR. You're granting a permit to harvest 
timber. One of the conditions of granting that permit is that you 
restock the land. So in that sense, it would be from that day 
forward, since it goes along with the grant of the permit. 

CHAIRMAN LOCKYER: So, if it were a million loss, we 
might be talking before Negedly-Z 'Berg. 

MR. NELSON: Right. 

CHAIRMAN LOCKYER: That might be gone because we're 
looking prospectively. 

MR. NELSON: Right, but that gets to the second part of 
the intent of the act, which is to encourage the ongoing prudent 
management. I mean, it is a balance where -- certainly not with 
protection of the environment, but there is, with the growing 
population, there is a pressure to change land uses in a lot of 


these rural counties like where I am from. 

So, part of what the Board needs to do -- 

CHAIRMAN LOCKYER: You mean for development purposes? 

MR. NELSON: For development, and the cost of writing a 
harvest plan has skyrocketed, especially for the small land owner 
It's extremely expensive, and so a lot of them have to frankly 
think about selling their land and developing it. 

That's always a constant thing, at least in my mind down 
at the Board, to somehow we've got to keep some incentives out 
there for these people to keep the land. 

CHAIRMAN LOCKYER: Did L.P. over harvest at Humboldt? 

MR. NELSON: I know you're an attorney, and so I know 
you'll understand this, but the process we set up to look at 
long-term plans, sustained yield plans, was one where we would 
essentially -- it's called an option, but we requested all of the 
industrial owners in Mendocino County to produce those. That was 
part of our alternative to the rule. 

But those plans go from review to the Department of 
Forestry as the lead agency. The Board, in all likelihood, will 
be sitting in a quasi judicatory role on appeal, and I've been 
advised I'm really not supposed to talk about individual plans 
that are coming in. I don't think I can answer that question. 

CHAIRMAN LOCKYER: I really didn't mean a plan. I meant 
as a matter of general policy, has there been over harvesting in 
Humbolt historically? Not in anticipation of any case whatsoever. 

MR. NELSON: In Mendocino? 

CHAIRMAN LOCKYER: No, in Humbolt. 

MR. NELSON: I have not seen figures that would tell me 


that, but on the other hand, I believe L.P. has said publicly that 
they had cut more than they were growing. 

CHAIRMAN LOCKYER: Would that intensify their need to 
accelerate harvests, if that were accurate, to harvest more in 

MR. NELSON: Well, it's a hard question to answer. I 
guess my answer would be that the statewide rules, irregardless of 
the Mendocino rules, what I was striving for, and I think are in 
those rules as far as we could get them, was to provide an 
incentive. Once the land owner has shown that he has satisfied 
the public trust resources, and that it is sustainable, the 
sustainable part is what gets you. 

The more that you're growing, the more you're allowed to 
harvest. The less you are growing, the less you're allowed to 
harvest . 

So, to answer your- question, if you were in a state where 
you didn't have a lot of trees left on your land, you simply 
couldn't harvest very much. 

I guess what I'm saying is, our proposal statewide will 
not go back retroactively and try to punish someone who has abused 
the system, if that's your opinion. But from this day forward, it 
can't happen again. I think therein lies the big difference 
between the two philosophies. 

CHAIRMAN LOCKYER: There is some thought, and I'll ask 
for the gentleman to comment briefly, there is some thought that 
there is a supply contract between L.P. and Home Depot, which is 
really the source of the pressure on L.P. to harvest more in 
Mendocino County. 


Are you aware of any such contract? 

MR. NELSON: I've seen the same letter, but you're way 
out of my realm of authority on the Board now. 

CHAIRMAN LOCKYER: I mean, as an employee of a company, 
have you seen -- 


CHAIRMAN LOCKYER: And you wouldn't because it's your 
competitors, in effect. 


CHAIRMAN LOCKYER: Sort of like oil companies compete, 

Sir, you wanted to make some brief comment? 
Senator Petris. 

SENATOR PETRIS: What's a silviculturist? I guess it's 
different from a horticulturist. What's a silvi? Something to do 
with a forest? 

MR. NELSON: Do you want Professor Romm to answer or me? 


MR. NELSON: It's fairly close to on a broad term to a 
horticulturist. It's someone who is concerned with the science 
and art of growing trees. It's kind of a fancy word for a 
forester that generally is responsible for the growth of trees. 



DR. ROMM: I appreciate the opportunity to talk with you 
today on this issue. I think some of what I'm going to discuss 
has to do with the Board as whole, and then Mr. Nelson's critical 
role within that Board. 


I might say at the outset what I see to be a fundamental 
tension between his conscience and his duties of public 
responsibility in the role defined within the Board. 

My name is Jeff Romm. I teach forest policy at the 
University of California at Berkeley. 

I read the Mendocino County Forest Advisory Committee's 
assessment of the economic impacts of alternative potential forest 
practice rules in Mendocino County. 

Once the Mendocino County Board of Supervisors decided to 
submit its County rule proposal to the Board of Forestry, I became 
an advocate before the Board on behalf of the County. I assumed 
this role because of the quality of the public process through 
which the County rule proposal was formed. Not because I 
necessarily agreed with the proposal itself. 

This was democracy at its fullest and best. I mean, 
you're talking about a five-year period, two elections, massive 
public involvement, and analysis. 

I spoke on behalf of a political process that most 
Americans are taught to be their birthright, their vision of 
democracy, the essence of their citizenship. 

I spoke as well in the hope that the Board of Forestry 
would display sufficient respect for this process to suggest that 
it might pull itself out of the mire of lost credibility into 
which its own loose standards of public performance had allowed it 
to sink. 

As a teacher of forest policy, it is my desire to be able 
to bring my students into a meeting of the Board of Forestry 
without the danger of their disillusionment and embarrassment. 


Today I speak solely on my own behalf. Now, this process 
that occured within Mendocino County was truly extraordinary. 
There was nothing consensus about it. It was untidy. It was not 
harmonious. There was just tremendous information moving 
throughout the whole public in a variety of means, through the 
media and the like. It was really quite an extraordinary and 
difficult experience to be involved with. 

I think that the Supervisors you've heard from today, who 
lived through that time, really displayed tremendous courage in 
their willingness to stick with the civil process and all the 
bumps that that involved. 

When we got to the Board, the Board of Forestry, here's 
what we learned. A forest county does not have the standing of a 
forest company. 


DR. ROMM: A forest company can be held in Atlanta, 
Georgia. It can be someone who moved in within the last six 
months. It might be one family's holding. But that company will 
be given privilege within the Board of Forestry in terms of time, 
civility, the whole range. 

We have video tapes of these processes if you want to get 
the true, full impact of what I'm trying to convey. 

CHAIRMAN LOCKYER: I've watched the video tapes. It's 
hard when you're on this side of the podium to always be alert. 
Some of the supervisors probably understand that as well. 

There did seem to be instances of sort of blatant 
disrespect for people who wanted to testify. 

DR. ROMM: We have other video tapes of prior times 


before Mendocino proposals, during the regulatory reform, when 
honestly, if you were an outsider coming into the room you 
wouldn't have been able to tell the difference between the Board 
members and the lobbyists and lawyers who bellied up to the Board 
and who were in the process of exchanging and discussing the 
regulations that were being formed. I think you would be welcome 
to look at this video tape and to consider what the public sees. 

CHAIRMAN LOCKYER: What duty does an industry 
representative on a board of this sort have? If you're appointed 
to be an industry representative, do you have some duty that's 

DR. ROMM: In my view, one cannot enter the Board of 
Forestry without acknowledging some commitment to something called 
the public interest, to something called the public interest. 

There is an oath taken that acknowledges some 
responsibility to the state-, and to the people of the state, to 
the well being of the people of the state. 

And in my view, it is not an industry representative's 
opportunity to totally withdraw from that responsibility, that he 
accepts an oath, and as part of accepting the privileges and the 
powers of being in a Board of Forestry. Nor is it even — if it 
was rendered in terms of conscience within total discretion of an 
individual to indulge his conscience at the expense of standards 
of public performance that would seem acceptable generally to the 
public; to forego commitments made by oath; to forego the law that 
creates the very board in which he is operating; to forego even a 
general appreciation for the problem of legitimacy of boards with 
the public at large, the loss of credibility when a narrower and 


narrower political base is used to support the outcomes of that 

Now this is not Mr. Nelson's problem. This is what has 
been happening in the Board of Forestry. 

The issue is that Mr. Nelson is really the most 
effective, most visible, best representative of this majority that 
has moved the Board in this direction. He is the leader of the 
majority of the Board that has gradually eroded the scope and the 
accountability of the Board of Forestry. 

He is not responsible totally, but he is a key part of 
this process. 

I want to add that Mr. Rogers is not. That in the 
Mendocino process, and something that has not been brought up yet, 
there was an effort by the Forest Practice Committee of the Board 
of Forestry to come up with a solution that combined the elements 
of the Mendocino proposal and the elements that made it more 
consistent with state regulation. And I think they came up with 
superior policy to what Mendocino had proposed and what the state 
already had. 

Mr. Rogers and Mr. Heald were key parts of that. And I 
felt it was an extremely constructive and important way to 

But of course, the majority of the Board did not even 
listen to the arguments on behalf of that package. And its 
arguments were for consistency. 

I think -- I have very high regard for Mr. Nelson. His 
attainments and his abilities are quite remarkable. But I think 
they have been seriously misused. I believe that they have taken 


on a life of their own that goes beyond the restrictiveness that 
is provided in law, in oath, in the general common sense for the 
accountability to a public, that has taken on its own life under 
if guise of conscience. 

I might argue that the difference between conscience and 
self interest becomes a very gray area. And I would really be 
interested in those areas in which conscience has deviated from 
the interests of Mr. Nelson's owner at any time during the time of 
his representation on the Board of Forestry. 

In any case, we have witnessed a corruption of public 
process in the Board of Forestry that is really tragic. It's 
really tragic. I don't know if this is going on other boards and 
commissions around the state. 

If it is true that it is, and I've heard things said, 
then the anger of our public is really justifiable because these 
boards and commissions have- simply lost any sense of 
accountability to the people, or even to you, the Legislators who 
presumably create the framework in which they're supposed to 
operate . 

SENATOR LEWIS: Question, Professor. 

Clearly, you disagree with his vote on the Mendocino 

But is it your contention that by voting against the 
plan, he was anyway violative of the Act itself or state law? 

MR. ROMM: No, he did not violate the letter of the law. 
The letter of the law, as I understand it, gives to the Board the 
authority of approving or rejecting a county request. 

In my view, purely my view, he violated the intent of the 


law, which is to deal with the problems of forestry in this state 
in an effective and equitable manner. It is a law that has sought 
to in fact directly rebuild the losses of capital, of forest 
capital that we experienced for so long in this state, to build up 
the stock. 

And it is precisely that problem that the Mendocino 
proposal addressed. The empirical evidence demonstrates from a 
variety of sources, from William MacKillup to the California 
Department of Forestry, to our studies at Berkeley, a sharp 
decline in the inventory of the industrial land base in Mendocino 
County that is extraordinary and leads, if you will follow it 
through its conclusion, to total dessimation, total disappearance 
of stocking, within a twenty-year period. 

SENATOR LEWIS: The problem is, reasonable people can 
disagree, and it sounds like Mr. Nelson's making a case that he 
thought that the two percent limitation just went overboard. 

MR. ROMM: Well, he is being misleading here, because by 
the time that the vote came up, the Heald-Rogers vote came up. 
There was now an increased flexibility for land owners, and there 
was the opportunity to take on state rule measures that were 
consistent with the POI rule. So, it had changed. 

If he says that he's voting against POI, then he's 
misleading you because that was already voted down. 

A compromise had come up, three votes for, and then Mr. 
Nelson's majority against, with Terry Gorton's great assistance on 
this . 

That was consistent with state rules. That was not 
strictly POI that gave discretion to land owners in the choice anc 


the kinds of rules they may choose. 

So, has been an incorrect element in this presentation. 

SENATOR LEWIS: Mr. Nelson, would you like to comment on 

MR. NELSON: I think you already categorized it. We have 
a disagreement on how we think the intent of the Forest Practice 
Act is to be interpreted. 

And I really think that was at the heart of a lot of 
this . 

I would also like to say that I am one of three industry 
representatives on that nine-person Board. While I'm flattered 
that I'm a leader of a majority of the Board, I am, by statute, in 
the minority on the Board. So, I just wanted to make that clear. 

Secondly, I wanted to bring up that there have, in fact, 
been many instances when I have taken votes on my conscience that 
have been contrary to what -my company, that I work for normally - 
and I could bring up one gigantic one which was, I voted for the 
infamous emergency rule in 1991, which were put in place and later 
thrown out by the courts. And virtually the entire industry was 
very opposed to those. 

And there are other instances, too, but I was categorizec 
as voting along company lines. And I do not do that. I do not 
vote along the Governor's lines, either. I could show you 
instances where the Secretary of Resources had advocated a 
position. I immediately made a proposal that was contrary to 

So, I think you understand that this is not a lot unlike 
what you do. I've voted contrary to just about every interest 


group I can think of, but I don't know how else to do it. I have 
to look at myself in the morning, and I have to vote my 

So, I would disagree with that point. The other thing is 
that -- 

CHAIRMAN LOCKYER: Do you disagree with the observation 
that empirical data would tend to suggest that the rate of 
depletion of the resource is as significant and dramatic as the 
Professor has suggested? 

MR. NELSON: I might take exception, but it really 
doesn't matter because the state rules that were put in, in my 
opinion, fixed that problem. They don't go back, and they don't 
punish someone who might have done that in the past, but they do, 
in my mind, make it impossible for that to happen again, which, in 
my opinion, is a good policy. It is not sufficient to satisfy the 
needs of -- 

CHAIRMAN LOCKYER: Let me ask that same thing of the 
Professor . 

When you're referring to the trend, are you referring to 
practices before the contemporary sustained yield philosophy? 
That is, the trend -- there should be restoration and 
rehabilitation happening that, over time, would not make the 
problem worse? 

MR. ROMM: The trend of depletion in Mendocino County 
continued from the initiation of the Forest Practice Act in 1973, 
consistently. The sustained yield plan that came through from 
Lousiana-Pacif ic continued the trend, despite the embodiment of 
the existing rules of the state. 


Our analysis of the state rules and the County proposal 
on Mendocino County showed that the state rules worked better on 
the inland Sierra types of the County, and the County rules worked 
better on the coastal area, which is the area of contest. 

I think the evidence that forest practice rules have not 
worked in Mendocino County in the coast, the evidence is 
dramatic. I think a large part of this comes because the forest 
practice rules themselves come out of a Sierra orientation and 
have not dealt with conditions where rapid depletion was 
continuing; have dealt with conditions instead where stock had 
already stabilized at some level, and where it was then fair to 
talk about improving forest practices to lift that level up on a 
gradual basis. 

CHAIRMAN LOCKYER: So, you would think depletion is 
continuing on the coast? 

MR. ROMM: Yes. 


SENATOR AYALA: Mr. Nelson, you are the representative of 
the industry? 

MR. NELSON: I'm one of three, yes, sir. 

SENATOR AYALA: We expect you to represent the industry. 

Do you think you represent industry fairly, the large 
company smaller company, the middle-size companies? Have you been 
fair with all of these different sizes of companies that are 
making up the industry. 

MR. NELSON: Yes, sir, I do. Let me also make it clear 
that I don't have a constituency. I'm not an elected 
representative . 


I am on the Board as an industry rep because of my 
background and my knowledge, and I'd like to think because 
whatever rules we come up with, there needs to be someone with 
some expertise from the industry as a pragmatic check to see 
whether or not it'll work. 

SENATOR AYALA: In a way, you do have a constituency, the 
industry. That's whom you represent, so you do have a 

MR. NELSON: I'm not sure I would agree with you, sir. 

I don't feel that I have a constituency. 

CHAIRMAN LOCKYER: Have you concluded, sir? 

MR. ROMM: If you're finished with me. 

CHAIRMAN LOCKYER: Unless you had anything else to add, 
guess so. I think I'd like to sign up for your class 
might be interesting. 

If there's anyone who really wanted to say something 
different than kind of the Mendocino issue, that hasn't been 
commented on, then that's what we'd like to get to briefly. 

MS. ROSEN: Thank you for the opportunity to comment on 
the proposed confirmation of Tom Nelson. 

My name's Elyssa Rosen, and I'm speaking on behalf of the 
Sierra Club, members throughout California. We strongly opposed 
this confirmation. 

I'm director of Sierra Club's Salmon Forever Campaign. 
And in that capacity, I've had the opportunity to examine Board of 
Forestry actions that affect water courses and their ability to 
support salmon. 

Based on that review, it appears that the Board of 


Forestry's failure to adopt reasonable water course regulations 
is a primary cause for a depletion of Coho salmon in California. 
The Coho population here is in a condition so critical that a 
listing this year under the federal Endangered Species Act appears 
virtually certain. 

The threats of this listing has forced the state to 
initiate an elaborate, costly process to recover this once 
thriving resource. This process would have been unnecessary if 
the Board of Forestry had fulfilled its mandate by adopting 
regulations that protect our water and fisheries. 

As a senior industry representative on the Board, Tom 
Nelson has been instrumental in every important decision that the 
Board has made during his tenure. He's pursuaded Board members 
with less technical expertise to adopt regulations that solely 
benefit industry and do not protect the public's interest in water 
quality and wildlife. 

Although he's been appointed as an industry 
representative, the Forest Practices Act is clear that all Board 
members must represent the interests of the public as a whole. 

Because he's been so instrumental in guiding Board 
policy, any general indictment of the Board of Forestry points to 
an indictment of Tom Nelson himself. 

Regarding unfulfilled Clean Water Act mandates, had the 
California Board of Forestry met its Clean Water Act obligations, 
the Coho might not be threatened or endangered today. 

A recent California Department of Forestry sponsored 
survey of its own forest practice, inspectors, regional water 
quality control specialists, and Department of Fish and Game staff 


makes it clear that the California Board has failed to provide 
adequate water quality protection rules in areas critical to Coho 
and other cold water fish species, yet corrective action does not 
appear to be forthcoming. 

State and federal recommendations for a monitoring 
program for the rules dates back to 1984, but no program has been 
implemented. Without a monitoring program, the CDF survey of 
field inspectors becomes our chief evidence that the Board of 
Forestry rules are ineffective to protect water quality and Coho 
habitat . 

CDF published its questionnaires results last January, 
and later included the water quality and Fish and Game responses 
which must be characterized as negative. CDF's own responses were 
mixed with a strong component of dissatisfaction. 

Although the Board has had the survey results in hand for 
more than a year, it's failed to adopt obvious needed changes. 

I urge the Committee to read the questions and responses 
cited from the survey in our testimony. A lot of them include 
such things as canopy for streams that protect water courses and 
fish from high temperatures and sediment, and those canopies have 
been quite in sorry shape. And the Department of Forestry 
representatives, as well as Fish and Game staff, have attested to 

Regarding designating Coho as a sensitive species, in 
December of 1993, the Department of Fish and Game formally 
petitioned the Board of Forestry to list Coho salmon as a 
sensitive species, and supported its petition with substantial 
evidence . 


The Board of Forestry scheduled hearings and issued a 
series of proposed rule packages. Sierra Club, many other 
organizations and experts commented in support of the sensitive 
species designation, and after more than a year of public 
discussion, and in spite of CDF personnel survey results, last 
February the Board dropped the proposal to designate Coho and 
declare that the existing rules were adequate. 

In the wake of delayed federal listing and Congressional 
elections that threatened to gut environmental laws, the Board 
stopped making any effort, despite overwhelming evidence, that 
Coho needed additional protection immediately. Basically, 
ignoring the petition and 13 months of public testimony amounted 
to a violation of public trust. And because of Board inaction, 
we've had avoidable damage to fish-bearing water ways. 

I just want to mention the problems that we've had with 
Board of Forestry rules that were supposed to be certified as best 
management practices in order to be certified by EPA, and transfer 
the ability-- transfer the authority to the Board of Forestry to 
go ahead with these rules. 

This has never occurred. Ever since 1977, EPA, State of 
California, and the public have been discussing how to make these 
rules more effective, and how to make them best management 
practices as certified under EPA. And more than decade later, 
there is no monitoring program, which is required under the Clean 
Water Act, and the EPA continues to refuse to certify the Board 
rules as BMPs . 

I'd like to point out that even without a scientifically 
verifiable monitoring program, the very fact of the proposed Coho 


listing indicates that the Board of Forestry rules are not only 
not certified as best management practices, but they are not best 
management practices. 

I have focused only on one of the many areas where the 
Board of Forestry has failed in its duty to protect our state's 
public trust resources, and in closing, I ask that you deny the 
confirmation of Governor Wilson's appointment of Tom Nelson to the 
California Board of Forestry. 

I turn it over to Zeke Grader. 

CHAIRMAN LOCKYER: Question, Senator Lewis. 

SENATOR LEWIS: There's nine members of the Board. Three 
of the members are members from the forest products industry. 

Do you think that's excessive? 

MS. ROSEN: No, no. 


MR. GRADER: Yes, Mr, chairman Members of the rules 
committee . 

My name is Zeke Grader. I'm the Executive Director for 
the Pacific Coast Federation of Fishermen's Associations. We 
represent working men and women in California's commercial fishing 
industry, including what's left of its salmon fishery. 

I want to point out emphatically, we are not an 
environmental group. We are a trade organization. 

Our concern here today with the Board of Forestry is what 
we think has been its failure to take actions that have been 
necessary to assure that not only forest lands were protected, anc 
the forest industry, but also those other economic interests that 
are affected by timber harvest practices. 


As has been mentioned, the Board had a petition that was 
brought to it in 1993 by the California Department of Fish and 
Game to simply institute some sensitive rules to assure that Coho 
salmon populations in its watersheds would be protected. 

That was, incidentally, the same year that all Coho 
fishing along the west coast for the first time in history was 
banned in order to try and provide additional protections for 
those stocks. In fact, our industry we'd seen for the past two 
decades continued increasingly restrictive regulations placed on 
fishing as an effort to try and protect the stocks, but we've seen 
absolutely nothing done as far as protecting their habitat and 
their watersheds. 

What happened in effect is that after a few hearings, is 
that these sensitive rules have in a sense gone into a black 
hole. To our knowledge, there never has been any formal response 
made to the Department of Fish and Game, other than the statement 
from the Board that the existing rules are adequate. 

Well, quite clearly, they're not. And I think the state 
will probably find this out rudely in July, when the Coho salmon 
in California and probably southern Oregon are listed as 
threatened under the Endangered Species Act. And then at that 
point, much of this is going to be probably out of California's 
control unless we very quickly put into place some rules that will 
protect these resources. 

So, from that standpoint, I think where we had home rule 
as far as California perhaps having some say over how we're going 
to protect Coho, it may be taken out of our hands to an extent 
that our failure to act is now bringing in the federal 


government. This should have been unnecessary. 

I should say at the same time that these sensitive rules 
were being proposed, that our industry was sitting down with the 
timber industry and beginning to look at what could be done to 
protect these resources. We were making progress. I think that 
there was acknowledgment, particularly among the coastal timber 
land owners, that actions had to be taken. 

But, however, there seemed to be a disconnect between 
what we were doing in meetings in places such as Ukiah and Eureka, 
and Fort Bragg and elsewhere, versus what was happening with the 
Board of Forestry here in Sacramento, because they apparently did 
not get the message that unless we acted quickly, this run of fish 
was going to end up getting listed. And indeed, that appears to 
be what will now happen. 

Secondly, I think as far as the monitoring goes, 
California proudly argues that we have the toughest forest 
practices in the nation. Well, that may be, but we don't know. 
The reason we don't know is, we don't have any monitoring. 

We don't know, first of all, whether or not our rules are 
working. There's been mention about our sustained yield rules now 
in place, our sensitive watershed rules. The fact is, we have no 
monitoring going on out there and the Board knows this. It's been 
repeatedly told this. 

We don't know if these rules are working or not, if 
they're effective. 

Furthermore, we don't even know if they are working, if 
they are good rules, whether they're being followed, because 
again, we have no monitoring. 


This Board has been derelict as far as seeing to it that 
the rules it promulgates are even monitored so we know, one, 
whether they're working, and two, whether they're being followed. 
That's all on the record. 

Third issue is the issue of independence of the State 
Board. I'm not going to get into the Mendocino County issues. We 
didn't take a position one way or another on the Mendocino 
County's rule. 

But I think the critical thing there was that the 
Governor's Office dictated, clearly, the way the Board came down 
on that vote. 

The interesting thing here is that one of the people 
that's not up before you for confirmation today was a person who 
chose to take an independent course from where the Governor's 
Office wanted the vote to go. He's not been reappointed. 

The Governor's Office called the shots on that one, 
clearly. And I think there's adequate -- so, that's fine. The 
Governor's Office has a position. No problem. They're allowed to 
have positions on these things. 

But if they're going to be telling the Board how to vote 
on these issues, why have a board? Why not save the money, save 
your time in these confirmation hearings and just get rid of that 
and tell the Governor's Office, if they're going to say how forest 
rules are made in California, and how they're going to be 
enforced, let them do it then. Why bother with the charade of a 

That's been the problem with this Board. It has not been 
independent. Those who have shown some independence sure as hell 


don't show it before you in a second time. 

So, that's the problem, and that's the reason that we 
would urge you to reject both Mr. Nelson and Mr. Rogers, and ask 
the Governor's Office to send before you some independent people 
who will make independent decisions, who are knowledgeable, and I 
think perhaps reflect a better balance of interests, not having 
three strong industry representatives. 

And I have no problem. I think industry representatives 
play a role on there, but then also have other members that are 
also knowledgeable, also perhaps from the same areas, those same 
communities who, perhaps, have a little bit different interest in 
the way the forest practices are conducted. 

Thank you. 

CHAIRMAN LOCKYER: One of the risks I should point out 
is, there are a few times, not often but once in a while, we do 
turn one down that we think is not sufficiently independent of 
political influences. By and large, we get somebody worse after. 

Thank you. 

Were there others that had wished to comment at all at 
this time? Have we concluded with any public testimony. 

My sense of the Committee, and partly looking at the 
agenda, I think we need to take a break because we're looking at 
another hour-and-a-half probably before not just this matter, but 
the whole thing gets completed. 

Listening on Mr. Rogers, that will probably be much 
shorter now because I think most of the same concerns will just -- 
sit because "N" comes before "R", do you think, is that what does 
it, that you get to be the hot seat? 


MR. NELSON: Luck of the draw. 

CHAIRMAN LOCKYER: I guess that's why. 

But that may be faster. But then we have a number of 
other items, both in public and Executive Session that we do need 
to complete today. 

I'd recommend to you that we break for half an hour so 
somebody could get a sandwich if they need to, but to try to get 
started again shortly after 2:00. 

Then we will start with you, Mr. Nelson, to respond. 
[Thereupon a brief recess was taken.] 

CHAIRMAN LOCKYER: We have a quorum present, at least, so 
I think we can resume. 

Mr. Nelson, I wanted to start with giving you an 
opportunity to comment and respond to anything you heard this 
morning. I know you did on various occasions, but if there's 
anything additional, you may comment. 

MR. NELSON: To be perfectly honest with you, I don't 
have a lot of responses that I haven't already put in. 

I'll be happy to answer any more questions. 

CHAIRMAN LOCKYER: Let me ask if there are additional 
questions of Mr. Nelson. 

See how good it is to take a break? It moves you right 

I'm going to recommend to the Committee, since we have 
two appointees in similar issues, that we hear both, and then 
we'll have to vote today, one way or the other. If you'll bear 
with us for a while, we'll ask Mr. Rogers to come up. 

MR. NELSON: Do you want me to sit down in the meantime? 


CHAIRMAN LOCKYER: Yes, then if you want to come back, 
you're welcome to if you hear anything in the remainder of the 

Mr. Rogers, how's your neighborhood? 

MR. ROGERS: I left my sweater at home. 

CHAIRMAN LOCKYER: We've decided you have to have a beard 
to be associated with forestry, regardless of your philosophy . Is 
that how it works? 

MR. ROGERS: It's just further indication that we're all 
the same person. 

CHAIRMAN LOCKYER: You're clicking right into the theme. 

Do you want to start with any comment? 

MR. ROGERS: I thought I would. 

Mr. Chairman and Senators, I'm a public member of the 
Board of Forestry, which I think has been made abundantly clear, 
and I've served for two years. 

I was brought in just as the new Board rules were puts 
into effect. In fact, I was one of the Five-four votes to get the 
new rules into effect. That was literally my first meeting. It 
was kind of fun. 

I'm not a registered professional forester, nor am I 
associated with the forest products industry. 

I bring to the Board my management experience as chairman 
of the board of an environmental horticulture firm, with 
production and distribution locations throughout California and 

I also bring a commitment to conservation of long 
standing. My interest started back in the '50s when, as a young 


boy and eventually an Eagle Scout, I spent much of my summers in 
the Sierra. 

For many years, I worked with community forest 
organizations and projects, such as activities of the tree people 
in Los Angeles. My extracurricular activities when not busy with 
the Board of Forestry concentrate on my job as President of the 
Board of Trustees of the Santa Barbara Botanic Garden. 

For those not familiar with the Botanic Garden, it's an 
internationally known organization for research, education, 
conservation, and the display of California native plants. 

Considering this experience, I was selected by the 
Chairman of the Board of Forestry to chair the Forest Practice 
Committee, whose two other members are highly qualified 
professional foresters, one of whom you've just had intimate 
contact with. The other is the Bob Heald, who was mentioned by 
many people from Mendocino a"s a very positive factor. He's the 
manager of Blodgett Forest. 

My job is to evaluate the technical input of both of 
those gentlemen and to attempt, whenever feasible, to reach 
consensus or compromise on my committee's recommendations to the 
general Board. That's basically what I attempt to do as Chairman 
of Forest Practice. 

My view of the future of forestry regulations in 
California is that radical departure from the current prescriptive 
nature of the rules and their attendant massive costs, complexity, 
and questionable focus must be attained if we are to protect the 
public resources and the long-term viability of the forest 
products industry here in California. 


Such a departure would entail, in my view, a change in 
the law, most undoubtedly, such that a more global approach to 
permitting of timber harvesting plans, perhaps entire watersheds, 
would be possible at a single time. The idea would be to lighten 
the cost to the regulated public and the general public, who has 
to, by the way, attend all these pre-harvest meetings and 
inspections, in order to protect the public trust while improving 
resource protection. 

Thank you. 


Do you have any observations or reactions to all of the 
commentary you heard this morning? 

MR. ROGERS: Yes, I do. 

At the risk of getting a little emotional along with 
Seiji, it's an awful situation. You're seeing something that my 
committee sees almost every single time it meets. Our debates are 
legion. Our committee meetings last, probably like yours, into 
the night. 

CHAIRMAN LOCKYER: You volunteered for this 
work . 

MR. ROGERS: Yeah, my wife just said the same thing to me 
last night. Yes, I did. 

I feel, you know, my sense of this -- obviously, I don't 
have to do this. But my sense of this is that you don't rate 
complaining about things that are going on in state government or 
national government unless you stick up your hand and do the stuff 
that's not so easy. That's my own personal commitment. 

My wife feels exactly the same way. She's a Regional 


Water Quality Board member, L.A. Environmental Commissioner. 
She's an anthropologist; Ph.D., UCLA. She's very seriously much 
the same way. We have our own little microcosm of interests. 

It isn't -- I think we're making progress. I believe the 
new rules that went into effect two years ago are going to make a 

But even if they don't, I believe that the dialogue is 
changing. I believe that the environmental organizations, 
particularly the ones that are the omnibus organizations, the ones 
that represent others, have a tendency to take a much more 
ecumenical view and are less confrontational. 

The problem we have on the Board of Forestry is the 
problem that I'm sure you're excruciatingly familiar with, which 
is, oftentimes the people who are associations and ostensibly 
represent industry groups or represent some public trust, tend to 
be shrill, and they tend to" be, as Eric Hoffer said, the true 
believers. You know, they're out on the opposite ends of the 

As a consequence, since they are extremely vocal, and 
very aggressive, and very interested in showing up and getting 
themselves heard, tend to dominate the dialogue. So in a sense, 
the dialogue is dominated by the lowest common denominator. 

And whenever you are attempting to do something that is 
-- the truth, as we all know, probably lies somewhere in. the 
middle there, and whenever you try to get these groups towards 
some form of concensus, almost every single time they have to go 
back to their constituency and report the distance they lost. And 
it's hard to do fundraising; it's hard to frighten people; it's 


hard to do a lot of stuff, you know, and keep your hat on, but 
that's what you do. 

So, we have a very difficult process hear. And my sense 
of this is that we should start all over again. And that's my 
comment and my opening remarks about having much more global, much 
more watersheds approaches to this problem. 

Now, I do believe that the public -- 

CHAIRMAN LOCKYER: You mean rather than sort of parcel by 

MR. ROGERS: This parcel by parcel business is 
transaction driven overhead, with which you're intimately familiar 
here. All it does is, it exercises the public, both the regulated 
public and the public who are trying to be certain that the 
resources are being protected. 

I mean, if you're just a volunteer type person, and 
you're worried about a watershed in your watershed group, or 
you're one of these fishermen, or something like that, you've got 
to send someone to show up on every single one of these darn 
inspections, or else maybe there's going to be resource damage 
from your perspective. 

I'm not suggesting that the rules are not good enough to 
preclude that, but you don't have that trust. 

CHAIRMAN LOCKYER: Sir, the evidence in the record and 
testimony suggests that the fishermen have got a problem, that 
there are rapidly deteriorating fisheries, and that on-shore 
activities are responsible for a significant, if not major, cause 
of those declines. 

Do you share that general feeling? 


MR. ROGERS: I share that as an anecdotal feeling, 

The problem that we have, and the reason that we did not 
go along with the sensitive species -- and in fact I did vote to 
not go along with the sensitive species -- you heard that my votes 
for Mendocino County went in a different direction. But in this 
case, I went along with it because we had to demonstrate that our 
rules, the current, existing Board rules, would lead to the future 
degredation of the resource. They just went into effect two years 

CHAIRMAN LOCKYER: So, the burden was on you, in 

MR. ROGERS: Very much so. What is missing here, and 
we're talking about the Board of Forestry right here, as if it 
all existed in Mendocino County and the North Coast. 

Eighty-five percent of our budget, as you know very well, 
is fire. You can imagine what it's like to get monitoring funds 
allocated to forest — ground truthing of the efficacy of certain 
timber harvest plans when, in fact -- you know, you're probably 
intimately involved with with the budget -- you know there is no 
budget for that. And the only thing that we could do was cut back 
further on fire protection, or vegetative management for fire 

These things — interestingly enough, 99 percent of the 
politics, other than the super scooper, is what we are discussing 
today, and 85 percent of the budget goes the other way. And 
rightly so, because the people of the State of California, the 
public trust resource that they want protected is their house and 


its surrounding environs. 

That's very difficult for us. 

CHAIRMAN LOCKYER: Questions? How about over here. 

The testimony suggested that you were involved in some 
efforts to compromise with respect to the Mendocino -- 

MR. ROGERS: Yes, Senator. Myself and the other Forest 
Practice Committee member, Bob Heald. We got together and tried 
to put together a compromise, which I'm glad Dr. Romm suggested 
was a pretty good one. We thought it was great, but we lost six 
to three on the Board. 

It doesn't mean that the six were bad people. My own 
sense of my fellow Board members is not that at all. I think 
they're all very conscientious, and they work real hard to get the 
job done. 

CHAIRMAN LOCKYER: Pacific Earth Resources, what's the 
nature of your business? 

MR. ROGERS: We are an environmental horticulture firm, 
which means we grow ornamental trees, wild flowers, ground covers, 
turf grass, things of this nature. 

CHAIRMAN LOCKYER: Is it all in one location? 

MR. ROGERS: No, we're located all over the state. We 
have locations in Modesto, Brentwood, San Juan Bautista, 
Tehachapi, Camarillo, and in Nevada as well. 

CHAIRMAN LOCKYER: Did anyone who has commented earlier 
wish to say something that is sort of different, or that hasn't 
been said already with respect to the general array of issues 
before this Board that would be a different comment with respect 
to Mr. Rogers than we heard on Mr. Nelson, or the Board in a 


general way? Apparently not. 

Did you want to conclude in any way? 

MR. ROGERS: No, Senator. Thank you very much for the 
opportunity to speak with you. 

CHAIRMAN LOCKYER: Thank you, sir. 

I think we need to give Senator Petris a five-minute 
recess here. We'll do that and let him come back. 

[Thereupon a brief recess was taken.] 

CHAIRMAN LOCKYER: Let's try to wrap up our work on 
Misters Nelson and Rogers. Maybe I'll begin just with a comment. 

One of the hardest things we ever do is turn an appointee 
down. We don't do it often, partly because, I guess, it's just 
human nature to want to be more agreeable. It's contrary to that 
disposition, as well as the fact that we think that the Governor's 
entitled to significant respect for his appointees. 

At least for myself, it seems that there's been 
sufficient controversy to have the Rules Committee indicate to the 
Board and appointing authorities that there needs to be a slightly 
better balance of appointments made to this body. 

And for that reason, I intend, at least, to support the 
confirmation of Mr. Rogers but not Mr. Nelson. 

I would like, though, to very quickly say to Mr. Nelson, 
since you're still with us, that I was very impressed with your 
testimony and professionalism. I can see why many of the members 
of the public that commented thought that, perhaps, you were 
unduly influential because of your pursuasive abilities and 
knowledge. I don't want to fail to acknowledge those. 


I guess it's sort of a feeling like I wish you were a 
friend I went backpacking with, rather than somebody I had to vote 
on in this way. 

Anyhow, it's not so much a matter of personal qualities, 
because those were outstanding, but a feeling that there's just a 
little too much industry influence and resullting disregard for 
well-intentioned local efforts, such as Mendocino County's that I 
reach that conclusion. 

It's not easy, and I just want to make that clear to 

Having said that, I'll entertain a motion on either Mr. 
Rogers or Mr. Nelson. 

SENATOR AYALA: I'll move Item Six, confirmation of Mr. 
Rogers to the State Board of Forestry. 

CHAIRMAN LOCKYER: Mr. Rogers is before us, if you'll 
call the roll? 

SECRETARY WEBB: Senator Ayala. 


SECRETARY WEBB: Ayala aye. Senator Lewis. Senator 



SECRETARY WEBB: Petris aye. Senator Beverly. 


SECRETARY WEBB: Beverly Aye. Senator Lockyer. 


SECRETARY WEBB: Lockyer aye. Four to zero. 

CHAIRMAN LOCKYER: Senator Beverly, do you wish to enter 

a motion? 


SENATOR BEVERLY: Would you look favorably upon a motion 
to send it to the Floor without recommendation? 

CHAIRMAN LOCKYER: No, I think we've — 

SENATOR BEVERLY: You're no on either one. I'll move 
confirmation . 

CHAIRMAN LOCKYER: We have a motion to confirm Mr. Nelson 
by Senator Beverly. 

Call the roll on that, please. 

SECRETARY WEBB: Senator Ayala. Senator Lewis. Senator 
Petris. Senator Beverly. 


SECRETARY WEBB: Beverly aye. Senator Lockyer. 


SECRETARY WEBB: Lockyer no. 

SENATOR BEVERLY: Move a call. 

CHAIRMAN LOCKYER: "Okay, we'll move a call. 
[Thereupon this portion of the 
Senate Rules Committee hearing was 
terminated at approximately 3:43 P.M.] 


I, EVELYN J. MIZAK, a Shorthand Reporter of 
the State of California, do hereby certify: 

That I am a disinterested person herein; that 
the foregoing transcript of the Senate Rules Committee hearing was 
reported verbatim in shorthand by me, Evelyn J. Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel or 
attorney for any of the parties to said hearing, nor in any way 
interested in the outcome of said hearing. 

IN WITNESS WHEREOF, I have hereunto set my 
hand this o^P" day of \ J^-. 

/ £VELYN/J. MI^AK^; 
— -shorthand Reporter 


Additional copies of this publication may be purchased for $8.30 per copy 
(includes shipping and handling) plus current California sales tax. 

Senate Publications 

1020 N Street, Room B-53 

Sacramento, CA 95814 


Make checks payable to SENATE RULES COMMITTEE. 
Please include Stock Number 288-R when ordering. 








ROOM 113 


4:35 P.M. 

FEB 8 - 1996 



Reported by 




ROOM 113 


4:35 P.M. 

Evelyn J. Mizak 
Shorthand Reporter 


FEB 8 - 1996 











GREG SCHMIDT, Executive Officer 

PAT WEBB, Committee Secretary 

RICK ROLLENS, Consultant on Bill Referrals 

NANCY MICHEL, Consultant on Governor's Appointments 



California Integrated Waste Management Board 


JESSE R. HUFF, Director 

Toxics Substances Control 

California Environmental Protection Agency 



Heller, Ehrman, White and McAuliffe 

Browning-Ferris Industries 

Community Coalition for Change 


Rose Drive Community Action Committee 


Channing Circle Residents Group 

FORD, Friends of Rose Drive 


BRADLEY ANGEL, Coordinator 
Southwest Toxics Campaign 
Greenpeace USA 

California Communities against Toxics 


Desert Citizens against Pollution 

THOMAS P. NAGLE, Deputy Secretary 
Health and Welfare Agency 


Proceedings 1 

Governor's Appointees; 


California Integrated Waste Management Board 


Opening Statement 3 

Questions by SENATOR PETRIS re: 

Term Limits 5 

Support for AB 9 39 6 

Questions by SENATOR AYALA re: 

Effectiveness of AB 939 6 

Opinion on Adding Wine and Liquor 

Bottles 7 

Motion to Confirm 8 

Committee Action 9 

JESSE R. HUFF, Director 

Department of Toxics Substances Control 

California Environmental Protection Agency 9 


Witnesses in Support: 


Heller, Ehrman, White & McAuliffe 

San Francisco 11 


Browning-Ferris Industries 14 

Witnesses in Opposition: 


Community Coalition for Change 15 

Questions by SENATOR PETRIS re: 

Public Hearings Prior to 

Siting Hazardous Facilities 20 

Question to MR. HUFF by SENATOR AYALA re: 

Responsiblity Pertaining to Toxic 

Waste Dump Sites 22 

Development of New Sites 22 

Need to Protect Residential Areas 23 

Availability of Funding from Superfund 23 

Tour of Site 24 

Resumption of Testimony from MR. SHABAZZ 24 

Questions by SENATOR PETRIS re: 

Duration of "Racial Injustice' 1 Policy . . 26 


Rose Drive Community Action Committee 27 

Statements by CHAIRMAN LOCKYER re: 

Time Problems 35 

Suggestion that Staff Make Inquiries 

into Complaints 36 


Channing Circle Residents Group 37 


FORD, Friends of Rose Drive 41 

Questions by CHAIRMAN LOCKYER re: 

Number of Homes in Subdivision 45 

Relationship of Browning- 
Ferris 46 

Mr . Soo Hoo 47 

Response by MR. HUFF 47 

BRADLEY ANGEL, Campaign Coordinator 

Southwest Toxics Campaign 

Greenpeace USA 50 

Questions by SENATOR LEWIS re: 

Study that Showed African-American 
Women in Bayview Hunter's Point Had 
Twice the Incidence of Breast 
Cancer 62 



California Communities Against Toxics 64 

Questions by CHAIRMAN LOCKYER re: 

PureEtch Facility 66 

Questions by SENATOR LEWIS re: 

Period of Time for Children's 

Cancer Cluster 67 


Desert Citizens Against Pollution 68 

Questions by CHAIRMAN LOCKYER re: 

Court Decision on Stringfellow 

Holding State Responsible 70 

Questions by SENATOR PETRIS re: 

Lawrence Livermore Lab Project 75 

State * s Jurisdiction 75 

Questions to MR. HUFF by CHAIRMAN LOCKYER re: 

Need for Specific Responses to 

Specific Allegations 76 

Rebuttal by MR. HUFF re: 

Open Government 76 

CEQA Issues 77 

Three Categories of Projects 77 

PureEtch Project 79 

Internal Review of Department's 

CEQA Process 80 

South Hampton Situation 81 

Questions by SENATOR AYALA re: 

Allowing Residential Development 
before Cleanup of Site 82 

Questions by CHAIRMAN LOCKYER re: 

Rotation of Staff 83 


Stringfellow 84 

Questions by CHAIRMAN LOCKYER re: 

Time Period that State 

Advocated Location 84 

Insurance Liability 85 

Environmental Racism Charge 86 

Statewide Environmental Services Facility 86 

Department's Model Public Participation 

Program 88 

Questions by SENATOR PETRIS re: 

Knowledge of MR. ANGEL Being 
Arrested 88 

Meeting with Public Citizens 89 

Department's Scientists and Decisions . 89 

Statements by SENATOR PETRIS re: 

Past State Practice of Over- 
ruling Scientists' Conclusions .... 90 

Dioxin Study 91 

Regulatory Structure Update 91 

Profit Versus Pollution 93 

Initial Studies at South Hampton 94 

Indian Trial I.D. Number 94 

Statements by CHAIRMAN LOCKYER re: 

Need to Review Transcript 94 

Questions by CHAIRMAN LOCKYER re: 

Plans to Expedite Process 95 

Motion to Confirm 98 

Committee Action 98 


THOMAS P. NAGLE, Deputy Secretary 

Health and Welfare Agency 99 

Motion to Confirm 100 

Committee Action 101 

Termination of Proceedings 101 

Certificate of Reporter 102 

1 P-R-O-C-E-E-D-I-N-G-S 

2 — OoOoo — 

3 SENATOR PETRIS: Now we have Governor's appointees 

4 appearing today. We have a distinguished former Member of the 

5 Assembly first on the list, Mr. Robert Frazee, who's been 

6 nominated for the California Integrated Waste Management Board. 

7 We now have a guorum. Senator Ayala, we now meet as a 

8 quorum and not as a subcommittee. We've been elevated from 

9 subcommittee status to full committee. 

10 Do you want to make a statement? Well, we have Senator 

11 Craven. 

12 MR. FRAZEE: Senator Craven is here on my behalf. 

13 SENATOR CRAVEN: Thank you very much, Mr. Chairman and 

14 Senators. 

15 I'm delighted to appear once again with a colleague that 

16 ! many of us shared, perhaps, the best part of two decades with, 

17 since he served with great distinction in the California 

18 Assembly. 

19 I knew him long before that time. I knew him as a very, 

20 I very dedicated citizen in his home town of Carlsbad, where he 

21 \ eventually was, I suppose, inveigled into running for public 

22 office as a Council person, to which he won — from which he ran 

23 and won his seat. He then moved on to become the Mayor of that 

24 city. 

25 I can recall when his term, I suppose, was ending, that he 
2 6 and I discussed the matter relative to running for the Assembly. 
27 And he did, and he won overwhelmingly. And he was elected, and 

re-elected, and re-elected during the years that he served with 

1 us without any problem or effort whatsoever. 

2 He is a person who has a background which is a little 

3 different than that which we may normally run into. He was in 

4 the flower growing business, as his family has been for years. 

5 And in that, he learned a great deal about business and the 

6 manner of conducting a business, which I think has served him 

7 well as an Assemblyman. 

8 He was known as a very frugal gentleman. He probably was 

9 also known as a conservative, but I would hope to use that term 

10 in the nicest, more benign sort of a way. 

11 He wasn't one who wears an arm band. It was just that 

12 feeling, based on his business experience and acumen, as to what 

13 we should do. 

14 And he did well. And as a matter of fact, he was, I 

15 think, the only Member of his party ever to serve as chairman of 

16 two committees under the then-Speaker Willie Brown. Which I 

17 think probably, in one way or another, says a great deal. I 

18 think that it indicates to you that the powers that be in that 

19 House felt very, very confident in his ability. And secondarily, 
2 that they felt that he was one of them, not one of those people 
21 on the other side or this side. 

2 2 He has been able to do that throughout his government 

2 3 career, and I suppose that's one of the reasons why he has so 

2 4 very many people who think so highly of him, and properly so. 
2 5 I believe that the Governor, in choosing him for this 

2 6 particular task, has chosen both wisely and well. He, too, has 

2 7 remembered and known Bob for many, many years, as I have, and 

28 will look with great favor upon him. 

1 And I would ask this august body to do the same thing, and 

2 I hope that you certainly will do that. 

3 Thank you very much. 

4 SENATOR PETRIS: Senator Craven, in all these impressive 

5 assignments that he's had as Mayor and so forth, do you think 

6 he's learned something about waste management to qualify him to 

7 go on this Board? 

8 SENATOR CRAVEN: Well, he's told me a little bit about 

9 what he does, which is very, very intriguing, Senator Petris. 

10 I think he knows a great deal, and I guess he learns every 

11 day, just as you and I do. 

12 SENATOR PETRIS: Thank .you. 

13 Assemblyman Frazee, would you like to make an opening 

14 statement? 

15 MR. FRAZEE: Thank you, Mr. Chairman. 

16 There's an old saying that I learned when I was here in 

17 the Assembly, and I sometimes think about using as we hold 

18 hearings of the Waste Board and go on with some very lengthy 

19 meetings, and that is: do you want to talk or do you want your 

20 bill out? 

21 And following Senator Craven, I feel that way today. 

22 Anything that I said now might be just extending the process 
2 3 here. 
2 4 But I would like to comment on a few things. 

25 As the Senator indicated, some 17 or 18 years ago, in 

26 1978, after about 25 years in business, I decided to embark upon 

27 public service as a full-time occupation. I ran for the State 

28 Assembly and was successful with that. 

1 And then, this last term, even though it was one term 

2 short of term limit time, I felt that I had served far longer 

3 than I had originally intended, and that it was time for me to 

4 move along and do something else. 

5 And in the appointment to the Integrated Waste Management 

6 Board, I found a new challenge. It gives me an opportunity to 
still be of public service, to occupy my time, hopefully, and to 

8 give back to my community and the state some of the benefits that 

9 I've enjoyed over the years. 

10 The Integrated Waste Management Board, as you know, is 

11 charged with operating under one piece of legislation, 

12 specifically AB 939, that sets some rather ambitious goals for 

13 the people of the State of California, and that's to reduce the 

14 amount of waste going to landfills by 25 percent in the year just 

15 past, in 1995. California did achieve that goal. And then 

16 further, by the year 2000," to reduce waste going to a landfill by 

17 50 percent over 1990 levels. 

18 That's a pretty ambitious program, but I think things are 

19 well under way. I have a great deal of confidence in the ability 
2 of the public and the private sector in California to meet those 

21 goals. 

22 I find it interesting, fascinating, to be out and visiting 
2 3 both public and private operated facilities and see the amount of 
2 4 materials that's now being recycled, the markets that are being 

2 5 developed for recycled materials. And I think it's a challenge 

2 6 that California is meeting and has really become a leader in this 

27 nation in avoiding waste of materials that have an economic life 

28 left to them. 

1 Without this opportunity to get out and see what's going 

2 on, I think the average citizen misses what there is out there in 

3 the way of material that can be recycled. 

4 Just as a measure of how well this is working, the Chicago 

5 Board of Trade this year is opening a commodities market in 

6 discarded materials, if you will, in plastics, paper, a number of 

7 other commodities that are now available through an on-line 

8 process with the Chicago Board of Trade. And I think we can see 

9 in the short-range future that recycled materials will be a 

10 commodity that will be available for investment. 

11 So, I'm tremendously encouraged at the progress that we're 

12 making with the agency and working with local governments. That, 

13 after all, is where I came from to begin with, so I'm enjoying 

14 that challenge. 

15 SENATOR PETRIS: Did term limits apply to you? 

16 MR. FRAZEE: No. 

17 SENATOR PETRIS: That came in after? 

18 MR. FRAZEE: No, they do not. I am serving out the 

19 remainder of a term that will end at the end of 1996. 

2 SENATOR PETRIS: No, I mean apply to you if you ran for 

21 the Legislature. 

22 MR. FRAZEE: Oh, if I ran for the Legislature? 
2 3 SENATOR PETRIS: Are you eligible? 

24 MR. FRAZEE: Yes, I have one term left in the Assembly I'm 

2 5 saving for the future. 

2 6 [Laughter. ] 

27 SENATOR PETRIS: Well, the guestion is relevant, because 

28 we're talking about recycling. 

1 [Laughter. ] 

2 SENATOR PETRIS: I gather you're a strong supporter of the 

3 statute, even though it may not be specifically related to us as 

4 Members. 

5 You mentioned AB 939, which is our basic statute. I 

6 gather you're impressed by that statute, and you agree with its 

7 premise? 

8 MR. FRAZEE: Yes. I did vote for it when it went through 

9 the Legislature. And even though it's not currently within our 

10 scope of practice, I also supported AB 2020, the Bottle Bill, 

11 recycling bill. 

12 And I hope to see the day when all of that can be merged 

13 into a single agency so that we don't have this overlap of 

14 recycling efforts in two agencies. 

15 SENATOR PETRIS: You just answered one of my questions. 

16 Senator Ayala, do you have any questions? 


18 Did I hear you say that everything you know, you learned 

19 in the Assembly? 

2 MR. FRAZEE: No, I did not. 

21 SENATOR AYALA: You mentioned AB 939. Is it effective, in 

2 2 your opinion, or a failure? 

23 MR. FRAZEE: I think it's been effective, specifically the 

24 goals of reduction. 

2 5 There are those who are, I believe, ready to visit the 50 

2 6 percent by the year 2 000 goal. I'm not ready to do that. 
2 7 There are certainly skeptics out there that don't believe 

2 8 that we can reach that — 

SENATOR AYALA: We're making good headway into that target 

MR. FRAZEE: And I think it's an achievable goal, as we 
see markets evolve. 

A good example, I think, is in newsprint. There were 
times in recent history when Boy Scouts were out picking up 
newspaper, hopefully to make some money from it. And if they 
were lucky, they got $10 or $20 a ton for it. And a lot of 
newsprint, after being gathered, went to the landfills in the 
middle of the night that no one knew anything about. 

Newsprint has been selling as high as $220 a ton in recent 
months. And there are now regularly separated for recycling 
seven categories of used paper, all the way down to a category 
that's called "junk mail", and I think that's progress. 

SENATOR PETRIS: Is that number one on the list? 

MR. FRAZEE: No, I think that's number seven. 

SENATOR AYALA: Do you think that wine and liquor bottles 
should be added to the materials subject to the Bottle Bill? 

MR. FRAZEE: That, of course, is not, as I mentioned, not 
within our jurisdiction. 

If I were still in the Assembly, I probably would not vote 
to do that. 

SENATOR AYALA: I don't have any more questions, other 
than to question the gentleman who introduced him, that's all. 

SENATOR PETRIS: Well, we're going to give him the floor, 




1 SENATOR CRAVEN: I know that you have a burning question 

2 that you have not advanced to this time. 

3 But to save you the time of so doing, let me say that the 

4 gentleman to my left is also, like yourself, a United States 

5 Marine. 

6 SENATOR AYALA: Oh, I'll move the nomination. 

7 SENATOR PETRIS: Ayala moves approval. 

8 [Laughter. ] 

9 SENATOR CRAVEN: I'm sorry to have waited so long. 

10 SENATOR PETRIS: Senator Lewis. 

11 SENATOR LEWIS: Mr. Chairman, I think I'm the only Senator 

12 here today that had the opportunity to serve with Assembly Frazee 

13 in the other House. 

14 We agreed almost all of the time, but not, of course, not 

15 all of the time. 

16 But I have a tremendous respect for Bob Frazee' s ability, 

17 and it would be my great honor to move his confirmation. 

18 SENATOR PETRIS: Okay, we have a motion. 

19 Is there anyone here who would like to testify either in 
2 support or in opposition? 

21 We have a motion. Let's call the roll. 

2 2 SECRETARY WEBB: Senator Ayala. 


2 4 SECRETARY WEBB: Ayala Aye. Senator Lewis. 


2 6 SECRETARY WEBB: Lewis Aye. Senator Petris. 


2 8 SECRETARY WEBB: Petris Aye. Senator Beverly. Senator 

1 Lockyer. 

2 SENATOR PETRIS: It's three-zero. We'll move a call to 

3 give the others an opportunity. I'm sure they want to be 

4 recorded. 

5 Good luck, congratulations. 

6 MR. FRAZEE: Thank you very much. 

7 SENATOR PETRIS: Thanks to Senator Craven for his 

8 sponsorship. 

9 SENATOR CRAVEN: Thank you, my pleasure. 

10 SENATOR PETRIS: Next we have Mr. Huff. 

11 Mr. Huff, welcome back to the Capitol. It's nice to see 

12 you. 

13 MR. HUFF: Thank you, Senator. 

14 SENATOR PETRIS: We'll ask Senator Calderon to introduce 

15 you, then ask for comment. 

16 SENATOR CALDERON: Thank you, Mr. Chairman. 

17 Certainly this individual needs no introduction to Members 

18 of this Committee. You probably have had your own experience in 

19 terms of working with Mr. Huff, and I think on balance you would 
2 find that it was a pleasurable experience in terms of his 

21 knowledge and his professionalism. 

2 2 He comes to this Committee with more than adeguate 

2 3 gualif ications to serve in this capacity. As many of you know, 

24 he was the Director of the Department of Finance under the 

25 Deukmejian administration from 1980 to 1984, and previous to 

2 6 that, he was the Chief Deputy Director, Department of Finance. 

27 He then was appointed President of the Integrated Waste 

28 Management Board, where he served for a year, a little over a 


1 year, and then was asked by Governor Wilson to assume the 

2 directorship for the Department of Toxics Substances Control. 

3 I think that Mr. Huff is eminently qualified for this 

4 position, but I'm here because I've had the opportunity to work 

5 with him, not only in previous years when I was in the Assembly, 

6 but certainly when I was Chair of the Toxics Committee here in 

7 the Senate. I had occasion to work with the Department of Toxics 

8 for three years. 

9 And it was quite frustratinq under the previous director 

10 because they had absolutely no experience in terms of estimatinq 

11 the financial condition of the Department. And so, every budqet 

12 year, we would qet different numbers in terms of what their 

13 budqet situation was. They would estimate that they were $2 

14 million in deficit; by the end of — by July, that number would 

15 jump to $14 million, and by the time the budqet was voted on, we 

16 found that they had over $2 million surplus. 

17 This was consistent in the Department, and anyone workinq 

18 with the Department for any lenqth of time as I did would know 

19 that they had serious problems and they were in serious disarray. 
2 That has subsided siqnif icantly under Mr. Huff's 

21 administration. Information is forthcominq to the Leqislature. 

2 2 He answers the questions directly. His numbers make sense, and 

2 3 he doesn't hide, no matter what the facts are. 

2 4 And I think that's to his credit, and I think that stems 

2 5 from his experience in dealinq with the Leqislature and his 

2 6 experience dealinq in public life. He's used to providinq public 

27 information in full view under the watchful eye of the public. 

2 8 He did so as President of the Inteqrated Waste Manaqement Board. 


1 And I think he brings that kind of tradition with him to 

2 this particular position. I think he is eminently qualified. 

3 There are still problems in the Department. I don't 

4 expect even Mr. Huff to be able to solve all of them in one year, 

5 but he has come a long way and will continue, I think, to be 

6 responsive in terms of working together with the Legislature to 

7 accomplish the people's work. 

8 I recommend him highly, not only because I know him and 

9 happen to like him as an individual, even though I can think of 

10 many times in the Assembly when that might not have been the case 

11 for a couple of months. But as an individual, he's honest. He 

12 has a lot of integrity, and he's willing to work and get down to 

13 business and get the job done. 

14 So, I was quite honored when he asked me to recommend him 

15 to this Committee, and so I do so with the highest 

16 recommendation. 

17 SENATOR PETRIS: Thank you. 

18 Any questions of the Senator? 

19 If not, is there anyone in the audience who desires to 
2 speak? All right, come forward, those in support. 

21 You can make notes and comment after. 

2 2 SENATOR CALDERON: If I may be excused, Mr. Chairman. 

2 3 SENATOR PETRIS: Yes, sir. 

24 SENATOR CALDERON: Thank you. 

2 5 MR. WEINER: Mr. Chairman, Members of the Committee, thank 

2 6 you . 

27 My name is Peter Weiner from the law firm of Heller, 

28 Ehrman, White and McAuliffe in San Francisco. 


1 I've been involved in one way or another, both inside the 

2 executive branch and in private practice with the Department and 

3 its predecessor since 1979. And I've have frequent contact with 

4 the Department over that period. 

5 The problems that this program and as a department, the 

6 Department has had in the past has been a lack of fiscal skill 
and understanding, which, as you know, Mr. Huff remedies by his 

8 mere presence, but also substantially problems with management. 

9 And I'm very pleased to say that from my perspective, 

10 Mr. Huff has brought strong managerial skills to the Department. 

11 I think, in retrospect, that his tenure as Director of the 

12 Department of Finance prepared him for how to be a Director, and 

13 his tenure as Chairman of the Waste Management Board enabled him 

14 to develop further skills in achieving consensus. 

15 But in both cases, he has integrated Department programs. 

16 He has restored a focus to core programs that at times was 

17 missing under previous leadership, and has given the Department 

18 firm direction. 

19 At a time when the Department itself has sometimes been 
2 involved in controversial programs, some of which I've 

21 occasionally disagreed with, what has been clear is that everyone 

2 2 in the Department understands what the direction is, and that in 

23 and of itself is a major achievement. 

2 4 Moreover, the Department has finally come to grips with 

2 5 implementation of the California Environmental Quality Act in a 

2 6 competent and assertive way. 

27 As of 1993, the Department had done, I believe, two EIRs, 

28 and was historically in the practice of issuing negative 


The Department at this time, as I understand it, is 
involved in 15 separate Environmental Impact Reports. I myself 
have been involved in some. And as time has gone on, it has been 
apparent that Mr. Huff has insisted on institutional competence, 
and that that competence is now holding sway. 

So, I think there may have been some past mistakes on 
implementation of CEQA at the Department that were initiated 
prior to Mr. Huff's arrival, but the record has been a very 
vastly improving one, and today it is quite competent in 
implementing that very important statute. 

For all these reasons, I believe that Mr. Huff's 
leadership has been an important one. He also is very sure of 
his mandate in protecting human health and the environment as he 
goes forward with needed regulatory reforms. I'm sometimes, 
frankly, opposed to some of those reforms and believe the current 
regulations should be maintained. 

But in all events, what is clear is that the Department 
has been thoughtful and open in the process. They've invited 
everyone to participate, and have frankly been open in substance 
as well as in process in considering what to do, because this is 
an area where some reforms are needed and some may not be. 

But Mr. Huff, in presiding over this, has been the very 
model of a person who understands that his job is to enforce the 
mandates that he's been given by the Legislature. 

So, in closing, I don't want to take too much time, 
either, but I realize there are many who will come after me, and 
this is my chance. 


1 I'd like to strongly support Mr. Huff's confirmation 

2 before this body. 

3 Thank you. 

4 SENATOR PETRIS: Thank you. 

5 MR. APREA: Mr. Chairman, Members of the Committee, I'm 

6 Marc Aprea . I'm representing Browning-Ferris Industries. We're 

7 a solid waste and medical waste collection, treatment and 

8 disposal firm. 

9 And I've come to know Mr. Huff in the four to four and a 

10 half years that he served as a member and later as Chair of the 

11 California Integrated Waste Management Board. And it is with a 

12 great deal of pleasure and no reservation that I urge you to 

13 confirm his appointment. 

14 Mr. Huff, I believe, and I think it is the belief of 

15 everyone in our company, represents the best in public service. 

16 He is open to listening to all points of view. He has an 

17 extremely high level of integrity. He is an insightful and, most 

18 important of all, he's a problem solver. He does not come to 

19 issues with a predetermined position, nor does he respond to 

2 problems or issues in a dogmatic fashion. Rather, he has always 

21 taken it as his duty as one to implement and enforce the law as 

2 2 the Legislature, you and your colleagues, draft it. 

2 3 And so, it is with a great deal of pleasure, again, that I 

2 4 would support his confirmation. 

2 5 And if there are any questions, I'd be happy to respond to 

2 6 any of them. 

2 7 Thank you. 

2 8 SENATOR PETRIS: Any others? 


Any opposition? Do you want to come forward? 
MR. SHABAZZ: Mr. Chairman, Members of the Committee, my 
name is Rahman Shabazz, and I am President of the Community 
Coalition for Change, which is a grassroots organization that was 
formed in South Central Los Angeles. 

And I'm here this evening representing those 
African-Americans and Latino-Americans who reside in South 
Central that don't have the financial means to be here to speak 
on behalf of themselves today. 

I have a short letter here that I'd like to read to help 
frame my discussion and opposition of Mr. Huff's confirmation as 
Director of the Department of Toxic Substances Control. It 

"As an African-American resident of 
South Central Los Angeles, I feel that 
under the leadership of Mr. Huff, far too 
little consideration is given to a 
disproportionate number of toxic waste 
transfer and treatment facilities located 
in communities where residents are people 
of color. 

"In August, 1995, a study was 
released by Jim Sadd, Professor at 
Occidental College, which concluded that 
minorities in Los Angeles County are 
three times more likely than Whites to 
live within a half mile of a facility of 
this type. The study also concluded that 


1 race was even more significant than 

2 income in determining where the facility 

3 would be placed. 

4 "In the community where I reside, a 

5 toxic waste storage and treatment 

6 facility has been operating under an 

7 interim status permit since 1990, and 

8 it's currently seeking to obtain a 

9 permanent permit to operate. 

10 "However, this facility has an 

11 extensive history of hazardous waste law 

12 violations. The facility has been fined 

13 several times. There have been fires, 

14 explosions, and nearby residents have 

15 been hospitalized. 

16 "The most recent incident of this 

17 type happened on August 18th of 1995, 

18 when two incompatible materials caused a 

19 chemical reaction which sent billowing 
2 clouds of gas into the community. 

21 "The community has struggled since 

2 2 1994 to block the approval of the 

2 3 permanent permit for this facility to 

24 operate, based on the facility's 

2 5 operating record and its close proximity 

2 6 to the residential community. Despite 

2 7 the risk of locating a hazardous waste 

2 8 facility in a residential community, the 


1 Department of Toxics Substances Control, 

2 in the permitting process, continues to 

3 move forward . 

4 "I feel that because the community 

5 where this facility is located is one 

6 where the residents are people of color, 

7 the level of concern is not the same. I 

8 feel that a different standard is being 

9 used in the licensing process, and that 

10 standard, as evidenced by the report by 

11 Professor Sadd, is based on nothing more 

12 than race. 

13 "Finally, I feel that the attitude 

14 and the philosophy of the Director are 

15 generally reflected in the practices of 

16 the Department. Therefore, based on the 

17 discriminatory practice of DTSC, I 

18 strongly oppose the confirmation of Mr. 

19 Huff as Director." 

2 Now, I have resided in this community where I live for 

21 approximately 4 years. And there are a number of things that 

22 are problematic in running any type of an agency of that size. 

2 3 And I understand that a lot of the things that were going wrong 

2 4 with the Department, Mr. Huff inherited as he became Director. 

25 But nonetheless, I haven't seen any activity on his part 

26 to neutralize or to put in place any type of a policy that would 

27 correct this environmental racist imbalance in terms of how these 

28 facilities are licensed, and how they're placed in these 


1 communities where the people are predominantly those of color. 

2 My wife — we talk about human health and environment — 

3 my wife is pregnant. And we live within a half a mile of this 

4 facility. I am fearful for my unborn child's health. 

5 Not only that, the residents of this particular facility 

6 -- let me say that this facility, the wall of this facility is 
adjacent to a trailer park. And the closest home to this 

8 particular trailer park from this facility is about 10 feet. 

9 It's about a 10-foot distance. 

10 And in the process of doing what they do, in transferring 

11 chemicals from one container to another, fumes, particles, become 

12 airborne. They fly over the wall. 

13 There are children that play in this community, in this 

14 trailer park right next door. Their backyard is literally right 

15 next to this facility. 

16 I mean, it shouldn't be there. 

17 We have appealed to the Department of Toxics Substances 

18 Control, but all of our complaints fall on deaf ears. But our 

19 complaints are not just allegations without base. 

2 We have records where the facility has violated 

21 environmental laws. They have been fined for not following the 

2 2 law, and still, even though that — even though they're not in 

2 3 compliance with their interim — with the conditions of their 

2 4 interim status permit, the Department moves forward with the 

25 licensing process. 

2 6 There are a lot of things here that I could touch on, but 

2 7 in the interests of time, I'm going to stop because there are 

2 8 some other people that came that want to make some comments as 



I would invite Mr. Huff to come out and see the facility, 
and see the close proximity of the residents and the people, and 
how the people live right next to this facility. 

I mean, a lot of these people are non-English speaking. 
They are undocumented individuals who fear to speak out in their 
own behalf for fear of deportation. 

But just because they are undocumented, you know — not 
illegal aliens. They're not from Mars; you know, they're not 
from outer space — they're undocumented individuals who have 
come into this country illegally, but that in itself is not 
reason for them to be — have to live under these conditions, 
where their health and their safety is jeopardized on a daily 

In 1991, there was an explosion at this facility, and 
people in the community had to be hospitalized. 

This facility has been fined numerous times for storing 
materials too close to the walls. Well, close to the wall is 
right next to a trailer park where somebody lives. 

I asked Mr. Huff to come out and see this, you know. He 
has to see it. 

And when we talk about, you know, public health or human 
health, and environmental justice, it's hard for me to see that 
what has taken place in the community where I live is actually — 
it's not true. It's just not true. 

The person that came before me said that he comes up with 
great pleasure, and without reservation; that he would, you know, 
offer Mr. Huff as a candidate and would like him to be confirmed. 


1 And with the same pleasure, and with the same lack of 

2 reservation, I feel that the way the Department's being run now, 

3 with the lack of regard for the people of color in their 

4 permitting process, with the same lack of reservation I would 

5 recommend that he not be confirmed. 

6 That's all. 

SENATOR PETRIS: Mr. Shabazz, I have a guestion. 

8 When a site is chosen for that kind of facility, such as 

9 in your community, are there any public hearings prior? 

10 MR. SHABAZZ: There was a public hearing, yes. 

11 Funny thing, I wanted to stop. 

12 There are letters that are sent out, and the letters are 

13 sent out not to every home, but maybe — I don't know exactly 

14 what the process it, but they try to canvass the general area 

15 that's going to be most affected so that they can come out, and 

16 so that they can speak on it. 

17 But in that process, in this particular facility that I'm 

18 talking about, when most of the people in my community became 

19 aware of it, and this was in approximately February-March of '94, 
2 and we became aware that this facility was pursuing a permanent 
21 permit to operate, we came together and we spoke amongst 

2 2 ourselves. 

2 3 You know, I didn't know that it had — no one knew that 

24 the facility was there actually conducting the type of business 

2 5 that it was doing. And in addition, no one knew that it had an 

2 6 interim status permit. 

2 7 What I'm saying is that the process of making people aware 

2 8 of what is taking place is not the best way. I mean, there's 


fault. It's fallen through the cracks; it's not working. 

A lot of times, people in the community where I reside, 
they receive letters or notices, and they'll throw them away, and 
they won't act on them. And when they don't act on those 
letters, naturally, when the meeting is held, it's written down 
or it's recorded that nobody showed up, nobody's concerned, okay. 

So, because nobody showed up, nobody's concerned, we'll go 
on with our plan, because there's no opposition. 

And that's a sad scenario; that's a sad reality. 

But even though no one shows up, still, to license a 
facility of this type that is dangerous to the health of the 
residents, and especially in such a close proximity as this one 
is to this community, is wrong, is wrong. 

There were letters that were circulated, yes. Everyone 
did not get the letter, but the few of us that did get them made 
our own posters, and that's how the Coalition was formed. We, 
you know, we canvassed our community, and a number of people 
didn't get them. So, we made out our own flyers, and we 
circulated our own flyers to alert people and make them aware 
that this meeting was taking place, and to mobilize the community 
and get everybody involved. 

SENATOR PETRIS: You know, it brings up an interesting 

We hear a very common criticism that the permit process in 
so many endeavors is far too cumbersome, strung out, and 
oppressive. Too many agencies have a role to play. 

It seems to me in that kind of a context that you 
described, the Health Department should have been in that 





























process, both County and State. And it seems to me that the 
State in particular, since it's a state agency, at least operates 
under our license and so forth, should be the first to check out 
the health consequences for the immediate neighborhood. 

That doesn't seem to be the case. Maybe Mr. Huff can 
comment on that when it's his turn. 

Any questions of the witness? Senator Ayala. 

SENATOR AYALA: I'd like to ask Mr. Huff a question. 

As Director of the Toxics Substances Control Agency, what 
is your responsibility as it pertains to toxic waste dump sites? 

MR. HUFF: Certainly, Senator. 

Responsibility is to protect human health and the 
environment from hazardous substances and hazardous wastes. We 
employ a number of scientists to ensure that that happens. 

In our permit process, it is that requirement, to protect 
human health, that we hold highest. The law requires us to first 
of all protect sensitive populations: senior citizens — 

SENATOR AYALA: Since you've been Director, have any new 
dump sites been developed? 

MR. HUFF: To my knowledge, I do not believe so. 

We have a number of sites who are operating under old 
permits. This site, for example, is operating as interim status. 
It was grandfathered in. When the laws were originally passed, 
it received its permit as a result of being grandfathered in. 

It has received a land use permit from the County of Los 
Angeles. In 1988, I believe, was the land use permit. 

And Mr. Shabazz is correct. It was spot zoned, heavy 
industrial. It abuts commercial property on one side and 


residential on another. So, the zoning, if you looked at a map 
of the zoning — 

SENATOR AYALA: Which came first, the residential areas or 
the dump site? 

MR. HUFF: I suspect the residential areas have been there 
for sometime in South Central. 

SENATOR AYALA: We do have a responsibility to protect 
those areas where we come in with a dump site that could be 
dangerous to their health. 

MR. HUFF: We certainly have a responsibility. We've been 
on that site many times with inspections. 

Mr. Shabazz mentioned that there have been violations 
found. It's been my Department that has found them. That there 
were fines levied; it has been my Department that has levied 
those fines. 

We're faced with a situation here where we have a site 
that has a land use permit, and I think that this begins as a 
land use question: is it an appropriate land use for this 
community, for this neighborhood, to have this facility there? 

The land use decision, the land use authority, as you 
know, Senator, is local. 

SENATOR AYALA: We have funds from the Super fund 
available, do we not? 

MR. HUFF: It's not a dump site in that sense. It's not 
— it's an operating site. It is a business. It is a business 
that handles hazardous materials. 

One of the materials — in fact, I believe the material 
that caused the explosion referenced in August of last year, was 


1 titanium. They handle titanium shavings from industries in 

2 Southern California. 

3 SENATOR AYALA : Have you been on the site he's concerned 

4 with? 

5 MR. HUFF: I have not personally yet been there, but I 

6 intend to take him up on his invitation. 

I spoke with Mr. Shabazz in the moments that we had before 

8 the Committee hearing — 

9 SENATOR AYALA: Do you have other complaints from other 

10 dump sites? Of course you do. 

11 MR. HUFF: Yes. 

12 SENATOR AYALA: All over the state. 

13 MR. HUFF: All over the state. Many of them relate to 

14 their operations, as do some of these complaints, but many of 

15 them also relate to a zoning decision over which my Department 

16 has not authority. 

17 MR. SHABAZZ: Senator Petris, if I could, you asked me 

18 about — my biggest problem here is the fact that I really feel 

19 that there's a double standard in how the licensing process moves 
2 forward in communities where there are people of color than it 

21 does in White communities. 

2 2 Now, as for instance, as this process moves forward, the 

2 3 State orders an Environmental Impact Report to be done as part of 

24 that permitting process. So, a scoping hearing is held in 

2 5 October of last year, and letters are sent out to residents in 

2 6 the community. And again, we had to — those of us that received 

27 letters — had to make flyers to make sure that the word is out 

2 8 so that a lot of people, or a number of people, would show up. 


But anyway, at that hearing that was scheduled for October 
5th, the local representatives of DTSC, who were left with the 
responsibility of handling that meeting — I showed up there 
bright and early. The meeting was supposed to be at 10:00; I get 
there about 9:30. 

And when I show up, they're not prepared. The facility 
where the meeting was supposed to be held is not prepared. They 
don't have a public address system. I have to get in my truck, 
and I have to go home and get my public address system to help 
facilitate, you know, communication to the group, and that's not 
my job. 

But if that meeting was being held for residents of 
Beverly Hills, the State would have acted in a more responsible 

I'm saying that the level of accountability and the level 
of sensitivity that is given to the residents in the community 
where I live is very low, if any at all. And that is just an 

Further, in that same meeting, which was called for the 
purpose of the residents of the community, coming and voicing 
their input in terms of what issues, what environmental issues 
they feel need to be looked at in that impact report, that was 
the purpose of the meeting. 

But the owner of the facility comes in with 10, 15 of his 
employees, and the primary time is given to the employees, coming 
up one after another, talking about how great a man he is, and 
how wonderful an operation it is, and how terrible we are as 
residents for coming here and making accusations that — half of 


1 the people that did come, that took off that Saturday morning 

2 from their household responsibilities to come for this meeting, 

3 they became so upset that they left. 

4 This is lack of responsibility on the part of the State. 

5 And I believe that this is an attitude, you know, that comes down 

6 from the Director to the local authorities, or those people who 
are locally in charge, because if the attitude from the head 

8 said, you know, "I want you to implement a more stringent 

9 attitude in terms of trying to reverse some of these 

10 environmental injustices in these communities," they would have 

11 been more diligent in the way that they handled their job down 

12 there, and they weren't. 

13 So, that's just another example of how I feel that there's 

14 a double standard, and there's this lack of respect where these 

15 facilities are being licensed or permitted in areas where there 

16 are people of color. 

17 SENATOR PETRIS: How long has this policy been going on? 

18 Mr. Huff is just a newly appointed person. How about the 

19 last five years, or ten years? 

2 MR. SHABAZZ: You know, there's this saying that I have: 

21 the only thing that has to — all that needs to happen in order 

22 for evil to prevail is for good people to sit back and do 

23 nothing. 

24 So now, if this policy was in place, whether it was 

2 5 written or just known, and he came in and took that position as 

2 6 Director, if he becomes aware that a certain practice is in 

2 7 place, as Director he should be moving to rectify that. 

2 8 So, I don't care what has taken place prior to his coming, 


because, yes, this attitude was there. But what has he done to 
rectify that? I don't see any evidence of that, and that's what 
I'm saying. 

SENATOR PETRIS: Well, your quotation is very familiar to 
me, since it comes from — 

MR. SHABAZZ: Excuse me? 

SENATOR PETRIS: The quotation you used is very sound, 
very familiar to me. I think it comes from Plato or Aristotle, 
one of the two. It goes way, way back. 

Any other questions from other Members of this witness? 

Thank you very much. 

Are there any others who desire to testify? 

MR. BUSFIELD: Good afternoon. My name is Tom Busfield. 
I live at 720 Primrose Lane in Benicia, California. 

I am the Chairman of Rose Drive Community Action 
Committee; initials are RDCAC. It is a group of affected 
residents serving as watchdogs over the responsible parties and 
government agencies regarding a waste site in our community. 
It's sometimes called Braito Landfill Committee — or, Braito 
Landfill, I should say — and it's also called Solano County 
Sanitary Landfill. There are several names for it. 

We've been doing this — basically, this group has been 
formed since the summer of 1991, so it's been going on for almost 
four and a half years now. 

Benicia, California, which is right next to Vallejo, for 
those of you who don't, maybe, know where it is, a small town of 
about 28,000 people. Half of this town live in South Hampton 
homes, so the responsible parties, which I'll identify in a 


1 second, are essentially living in half of a community built by 

2 the developer that we have a problem with. 

3 The responsible parties, South Hampton Company is owned by 

4 a company called ALMA Associates out of Menlo Park. They were in 

5 financial partnership with First Nationwide Bank, who is owned by 

6 Ford Motor Company. 

7 Banking interests of First Nationwide Bank were sold off, 

8 leaving a real estate division that no one wanted, essentially, 

9 and that company is called Granite Savings Bank, and 

10 metamorphosized into Granite Management Corporation, who is the 

11 named responsible party at this point in time. 

12 First Nationwide and Granite actually own a lot of the 

13 affected property that we're having to live around, or in some 

14 cases, on top of. 

15 The situation is that we've got a privately owned dump 

16 site, from a historical standpoint, with numerous burn sites 

17 within this dump site. It's on the western extreme of town, and 

18 it operated essentially from the mid '50s through the late '70s. 

19 It was a Class II dump that accepted Class I wastes; essentially 

2 tannery and refinery wastes are the most hazardous materials that 

21 we're finding on the property. 

2 2 South Hampton and First Nationwide Bank bought the 

23 problem, did a terrible job with cleaning up the site, which is 

2 4 what they were supposed to have done. Ended up building homes in 

2 5 and around the remaining hazardous wastes, some of which were 

2 6 moved and buried illegally, actually, by these people, by the 

27 responsible parties. 

2 8 Regional Water Quality Control Board was the governing 


agency at that point in time when this dump site was supposedly 

We're dealing with about 56 toxic substances, 22 of which 
are known carcinogens; 6 of those are in excess quantities, plus 
dioxin because of the burn sites that we have in our 
neighborhood. Many of these wastes are about 20-30 feet below 
the surface, but in many cases also, they're within 2-3 feet of 
the surface. 

We're dealing with heavy metals, methane with trailing 
carcinogenic gases. We're concerned about our drinking water, 
since we're dealing with PVC pipes coming into our homes. Any 
contact with PVC pipes with certain hazardous materials will 
penetrate those pipes. 

Groundwater is coming up mostly clean because of the 
dilution of the many underground streams in the area. But we do 
have 9 separate and distinct hazardous waste sites in our 
community. It's a single home community of about quarter of a 
million dollar homes, so we're dealing with an upper middle-class 
neighborhood . 

Health impacts, we've had at least three deaths in our 
community, two from leukemia, one from cancer. Breast and 
testicular cancer, immune system problems, endometriosis, 
possibility of lead poisoning. We have a child with spots on his 
brain that no one quite knows where they came from, and we are 
aware of the difficulty of linking some of these health affects 
with what was under the ground and where we live. 

In some cases, in my case, I've lived there for 10 years, 
with four children. 


1 What we have been told is that we don't have short-term 

2 risks in where we live; meaning that if any of you folks came and 

3 visited my house or any of the houses in the neighborhood, you 

4 wouldn't have to be concerned for your health. But we are left, 

5 for the last four and a half years, wondering about our long-term 

6 health risks. We have no answers, and unfortunately probably 

7 will never have answers on those particular questions. 

8 We do have litigation which is complicating our situation. 

9 There's approximately 300 plaintiffs against the responsible 

10 parties, representing about 75 households. We have a trial date, 

11 thank God, at summer of '96. Hopefully we get some type of 

12 resolution. 

13 We have responsible parties that are spending about a 

14 million dollars a month on their defense. They've got numerous 

15 teams of attorneys, including Waithe and Watkins, who essentially 

16 cut their teeth on Stringfellow, and consultants paid to say and 

17 do what the attorneys tell them to do. 

18 The problem essentially is that we have responsible 

19 parties that are in charge of investigating their own misdeeds, 

2 even though their whole legal defense rests on the argument that 

21 no hazardous wastes exist in the affected area, only chemically 

22 affected soils, which is how they refer to it as. 

2 3 These people have established a "no problem" scenario up 

2 4 front; have proceeded to attempt to support that conclusion 

2 5 throughout the investigation. 

2 6 In the face of intense pressure to clean up the site, and 

2 7 absorbing some of the blame for spending four and a half years 

2 8 with not much to show, and up against a responsible party that 


won't produce anything that could be used against him in a court 
of law, DTSC is compromising the community's health and safety 
concerns in order to move forward with the cleanup. 

We have two additional presentations that will follow me, 
and at least one of those will get into some details of some 
situations where we've been having to deal with. 

As far as Mr. Huff is concerned, you know, the direct, I 
guess, problem I would have with Mr. Huff's appointment revolves 
on a direct basis, anyway, revolves around the mission statement 
which I think he just referred to in the last presentation. And 
unless I'm wrong, the mission statement went from what Mr. Huff 
was quoted as saying, which was "improve environmental quality to 
protect public health, the welfare of our citizens, and 
California's natural resources." It went from that to, "protect 
public health and the environment from harmful exposure to 
hazardous substances without unnecessarily impacting sustainable 
growth and development." 

As far as I know, the mission statement was changed about 
November at Mr. Huff's behest. And as far as I'm concerned, as 
an affected resident, my question that I've already posed to the 
agency is whether that mission statement is retroactive or not. 
It's a very nebulous statement that leaves a lot of open holes 
within which anyone can operate, and I'd certainly want to be 
under the former rather than the latter mission statement, to be 
quite honest with you. 

Beyond that, most of my concerns and my problems revolve 
around two appointees of Mr. Huff. And as a result, Mr. Huff, I 
think, is — must be held accountable, I think, for the 


1 appointees. It's Mr. Blais and Mr. Ryan. These people are now 

2 calling the shots, and things are definitely going down hill, 

3 unfortunately. 

4 When we first started out with this process, we had a 

5 Project Manager, and then the geologist and engineers that fell 

6 underneath that Project Manager. We now have about four layers 
of management, and a lot of the decisions are being buried within 

8 that management structure. 

9 And at the same time, the lines are blurring between the 

10 responsible parties and the government agencies. And that should 

11 not exist, and obviously causes a lot of problems. 

12 The agency is, again, at the direction of our new 

13 management structure here, is allowing intentionally bad 

14 information to be collected, and then attempting to pass it off 

15 as being valid. 

16 We're signing a CEQA document while knowing full well it 

17 contains false information. We're revising workplans, and 

18 they're not being distributed, yet requiring public comments 

19 within three days of their report's submittal. 

2 All of these reports we are watching very carefully, 

21 because our children's health revolves around these particular 

22 reports, unfortunately. 

2 3 We're making some precedence within the last couple of 

2 4 months that are extremely disturbing. We're getting verbal 

2 5 comments on a lot of reports from other reporting agencies, OEHHA 

2 6 in particular, only getting verbal comments on some of these 

2 7 reports that are due, and unfortunately, we want to see something 

28 than just verbal comments. We would like to be able to be 


assured that what is being implemented in some of these workplans 
is correct and has the oversight of all the agencies involved. 

We're using composite sampling, which has previously been 
banned from our situation. Composite sampling, from our 
standpoint, is — dilution is the solution to pollution. And 
unfortunately, that is being used back again, once again. It's 
appearing in our situation, and it's being justified. And there 
is no justification for that. 

Right now, we're in an expeditious process or mode. We're 
expediting a process that, in the last six months — excuse me. 
We're expediting a process in the last six months before trial 
while the investigation sat stagnant for four and a half years. 
Responsible parties have stonewalled the process, and now want to 
ram it through quickly without exposing anything that might 
incriminate them. And unfortunately, our government agencies, 
DTSC, is accommodating them. 

We're ignoring health and safety issues in order to 
achieve, at best, a partial cleanup. The agencies seem to be 
willing to absorb the blame for the ineptness and bureaucratic 
delays over the last four and a half years. And they are 
covering for the responsible parties, and I would like to know 
why that is happening. 

We have a circular process, unfortunately. And we're 
allowing it. 

We have concerns about health issues not being issued to 
the current residents because they didn't have — and the 
explanation is that there was not a PEA that acknowledged the 
problem, a preliminary endangerment assessment. But such a 


1 statement will never come out from the responsible parties for 

2 the reasons stated earlier. Therefore, no warnings and continued 

3 potential exposure. 

4 We've had seven project managers in the last four and a 

5 half years. That constant revolving door of project managers 

6 eguals a loss of institutional memory and a new learning curve 
from our standpoint that the responsible parties are taking full 

8 advantage of. 

9 We are seeing our toxicologist stifled by making her 

10 essentially a half person from a time standpoint. Again, our 

11 major concerns are health and safety. We want that toxicologist 

12 to be a full term person — full time person. 

13 She's also being censured within her correspondence. 

14 She's being prevented from any direct phone call conversations, 

15 and we have actual concerns that she is being replaced without 

16 our knowledge. 

17 All of this work — all of this happening with our 

18 toxicologist at the time that the responsible parties are putting 

19 out a health risk assessment. That concerns us tremendously. 

2 We have field notes that have been presented through the 

21 litigation process from the responsible parties' geologists. 

2 2 There have been no analysis in any way, shape or form of those 

2 3 field notes. It's — it's incredible. 

2 4 We have no EIR geologists. There have been no analyses in 

2 5 any way, shape or form of those field notes. It's — it's 

2 6 incredible. 

2 7 We have no Environmental Impact Report. It's a year 

28 process in and of itself. We've been in this situation for four 


and a half years. We have not even started an EIR. 

We've found dioxin, testing through our own consultants. 
There is no plan that I'm aware of on the part of the agencies to 
require the responsible parties to further test for dioxin. 

We have a situation where the responsible parties have 
their public relations firm interacting with DTSC. These people 
come out of Washington, D.C., and it would not surprise me if 
we're dealing directly with a lobbyist. You know, with the 
responsible parties I mentioned, we are certainly dealing with 
both the banking industry and the real estate industry. 

Unfortunately, my community is not up against any small 
people in any way, shape or form. 

We've also — our situation is within the 2061 process, 
and as far as I'm concerned, it's headed for the SB 923 process, 
all of which expedites the process even further. And again, what 
we are concerned about is expediting, yes, but not at the cost of 
health and safety. 

I would formally request a Senate oversight hearing if at 
all possible, and a further investigation into Mr. Huff's running 
of this agency before confirmation is granted. 

CHAIRMAN LOCKYER: Thank you, Mr. Busfield. 

Let me ask, what's our time? When does the year run on 
you, Mr. Huff? 

MS. MICHEL: February 7th. 

CHAIRMAN LOCKYER: So, we only have a couple of weeks. If 
there were to be any delay or further inquiry made, there's a 
time problem. 

I'm sorry, I had to be at another meeting, so I've come in 


1 the middle of things here. 

2 Mr. Huff, did you wish to respond to any of the comments 

3 from Mr. Busfield, or how do you prefer to answer any of the 

4 specific concerns he's raised? 

5 MR. HUFF: Well, at the pleasure of the Committee, I 

6 understand from Mr. Busfield, whom I met, again, in the time 
before the Committee meeting for the first time, he indicated, I 

8 believe, that he had two other people who are also willing and 

9 desirous of making statements on this situation. 

10 CHAIRMAN LOCKYER: Yes, there are, yes. 

11 MR. HUFF: I don't know whether — 

12 CHAIRMAN LOCKYER: Are they on the same issue? 

13 MR. BUSFIELD: They're separate groups within our 

14 community. 

15 CHAIRMAN LOCKYER: But in the same — 

16 MR. BUSFIELD: Same topic, yes. 

17 CHAIRMAN LOCKYER: — problem. 

18 It would probably make sense, then, to respond after all 

19 of that, I would think. 

2 MR. HUFF: I think it might. 

21 CHAIRMAN LOCKYER: The only suggestion which I would make 

2 2 for Members of the Committee, we have a couple of good staff 

2 3 members, like Arnie Peters and Ben Firschein, who could, between 

2 4 the time that Rules Committee took action and we allowed it to 

2 5 come up on the Floor, could make specific inquiries into 

2 6 complaints, so there's that potential, at least, for some 

27 investigatory type work. 

28 Were there questions of Mr. Busfield? Thank you, sir. 


MR. BUSFIELD: Okay, but the main concern I have, I 
guess, is, as far as the big picture is concerned, is that we are 
dealing with homes on dumps. 

We have a process that seems more geared towards hazardous 
waste being excavated from an open field somewhere, and 
unfortunately, you're taking that process and forcing it, you 
know, a round peg in a sguare hole kind of thing, and it's 
obviously not working. And that certainly, I think, needs to be 
addressed and looked at, I think, for the future. 

You know, we're interested in resolving this thing, if not 
for ourselves then for future people who are going to be in this 
position, and unfortunately, I don't see anyone really taking a 
huge interest in changing that process. And the one that's in 
place right now does not work for homes on dumps. 

Thank you. 


I don't know if there's a particular order, but I have 
Jane Williams, Stormy Williams, Bradley Angel are names I have on 
a list. 

The only thing I guess would be constructive, if it's all 
on essentially the same topic, is to try to be nonrepetitive. 

MS. TURNER: Good afternoon. My name is Cathy Turner, and 
I live at 871 Channing Circle, Benicia, California. 

I'm a member of the Channing Circle Residents Group, and 
I'm here regarding the Hides and Tires hazardous waste site. 

This site is an illegal dump site by the responsible 
parties that Mr. Busfield was talking about earlier. 

During Mr. Huff's term as Director, he has shown a serious 


1 disregard for the rules and procedures that his Department is 

2 required to follow and enforce. Mr. Huff's management or lack of 

3 it can be shown by the sign-off of a negative declaration for our 

4 remediation site, which was done prior to the final testing 

5 results being received and reviewed. 

6 My understanding is that the CEQA process mandates that 
all results must be received and completely reviewed before the 

8 signing of any documents. 

9 Mr. Bill Ryan, Division Chief and appointee of Mr. Huff, 

10 signed off on the negative declaration, even though the 

11 procedures used to obtain test samples were questioned by state 

12 employees and an independent consultant hired by the City of 

13 Benicia and residents of Channing Circle. 

14 The state was pushed by the R.P.s to sign off so that 

15 remediation of the Hides and Tires area could begin. The 

16 negative declaration the movement and disposal of acknowledged 

17 Class I waste to a Class II landfill. 

18 When these facts were brought to the attention of the 

19 Class II waste facility, they declined to accept further waste 
2 from our site unless additional, independent testing of the 

21 wastes were done, and if the state would accept responsibility 

22 for them accepting this waste. 

2 3 Correspondence was sent to Mr. Huff regarding questionable 

24 procedures, invalid sample gathering techniques, and the 

25 modification of test results to achieve the desired results at 

2 6 the Hides and Tires site by a representative of our group. The 

2 7 dates of these letters are December 5th and December 12th. 

28 Copies of letters to the Keller Canyon Landfill, dated the 12th 


and 2 0th, are also included for your review. 

Mr. Huff has not answered or responded to any of these 
letters in any way at this point. 

To his credit, Mr. Lubin, which is one of the persons on 
the letters, did call Mr. Huff's office last Thursday to warn him 
that these letters were going to be brought up in the Committee 
meeting. He's assigned Mr. Jerry Marcot to respond to these 
letters since that time. 

These letters addressed many of the concerns and issues 
raised by the residents of Channing Circle. We still don't have 
an answer. 

Two of the most serious issues raised by these letters 
were unauthorized deviation from the submitted and approved 
investigatory work plan. Unauthorized actions were taken in the 
field which allowed no testing of actual waste be done. Samples 
were taken only of soil around the contaminated site. 

Composite testing was used of waste piles after the fact, 
which waste was dug up, mixed with other material, left on the 
ground, covered in tarps for many weeks — from the end of 
September through mid-November — and then tested using composite 
testing. These results also were not considered valid for 
remediation and disposal. Additional testing for potholes, which 
they dug holes in the waste and then tested that, was done on the 
Friday before the negative declaration was signed on a Monday. 

Procedures at this site have also endangered the health 
and safety of the residents. It's bad enough that we've lived 
with this, and it's been there, but the storage of the waste with 
tarps on the ground, on top of a hill, with a minimum 5 mile an 


1 hour winds on a normal day, 85 mile an hour winds on a stormy 

2 day, left the neighborhood open to this waste flying through the 

3 air on our homes, into our yards, in a regular manner. 

4 Additionally, they decided that it was now okay to move 

5 this waste, and they moved on one of the worst stormy — some of 

6 the stormiest days this year. The material then flowed out of 
the back of the trucks onto our city streets, all the way down 

8 past our homes, and were staged in front of a Kindercare, where 

9 there's small children residing every day. 

10 When Mr. Huff was made aware that the workplan had not 

11 been followed, which in Mr. Lubin's letter he has tried to bring 

12 up all these questions to get things corrected before any more 

13 work was done, Mr. Huff and his Department should have properly 

14 managed our site to ensure that the residents of Channing Circle, 

15 Solano County, and Contra Costa County, which is where Keller 

16 Landfill is, not replaced it by the incurrent storage and 

17 transportation of this waste. 

18 I realize Mr. Huff and his Department does not have a lot 

19 of experience in remediating hazardous waste from beneath a 
2 residential area. Given the enormous responsibility that 

21 Mr. Huff and his Department have, as the designated responsible 

2 2 agency responsible for this site, they must ensure that all 

2 3 procedures and practices are followed, while providing a complete 

2 4 and thorough remediation, while protecting the neighbors' safety 

2 5 and health. 

2 6 Thank you for your time and efforts on our behalf. 

2 7 CHAIRMAN LOCKYER: Thank you. 

28 Questions at all? Thank you. 


Let me inquire if there's anyone else. 

MS. SCIALABBA: Lorraine Scialabba. 

Good evening. My name is Lorraine Scialabba, and I am a 
resident of Benicia. 

And we've had a terrible tragedy happen there, because at 
one time, Benicia was voted the number one city in the Bay Area 
to live, before the toxic waste was discovered. 

The toxic waste was discovered directly beneath the homes. 
Needless to say, that cast quite a different light on the number 
one place to live in the East Bay. 

We were very thrilled whenever this project did go to Cal- 
EPA, because we really felt that there were going to be experts 
who were very sympathetic to our cause and were going to do their 
diligence in trying to solve and get this remediation going. 
However, that never happened. 

I belong to a group that represents — 

CHAIRMAN LOCKYER: Can you kind of paint the picture? 
Maybe I would have heard this earlier on, but it's mostly from 
the dump? Is that the cause of the toxic wastes? 

MS. SCIALABBA: Yes. Actually, what happened was, there 
was a dump. 

CHAIRMAN LOCKYER: When did that operate? 

MS. SCIALABBA: '50s, '60s, a long time ago. Shut down. 

The builder was supposed to get an order to scrape the 
valley to bedrock and come back with clean fill. 

Surprise, surprise, ten years after people had lived 
there, Tom Busfield, the first gentleman who came up here, said, 
"Wow, I have this black stinky-smelling stuff in my yard. My 


1 goodness, what could that be?" 

It was turned out to be high levels of lead and chromium, 

3 and the builder immediately removed Tom, his four children, off 

4 the waste. 

5 The other thing that came to light — 

6 CHAIRMAN LOCKYER: What do you mean, removed? 

MS. SCIALABBA: They came in and said, "Wow, you are out 

8 of here today." 

9 CHAIRMAN LOCKYER: Took the soil, or moved them to another 

10 house? 

11 MS. SCIALABBA: Moved them to another home. 

12 CHAIRMAN LOCKYER: What happened to that home? 

13 MS. SCIALABBA: That home is still there. That home is 

14 still under investigation. We are still into for four years. 

15 That home now has a sink hole under it, and we know no more today 

16 than we did four years ago. 

17 CHAIRMAN LOCKYER: And it was four years ago that — 

18 MS. SCIALABBA: Correct. 

19 CHAIRMAN LOCKYER: — Busfield was moved? 
2 MS. SCIALABBA: Correct. 

21 CHAIRMAN LOCKYER: How many homes are there in this 

22 development? 

2 3 MS. SCIALABBA: Well, now that you ask — actually, what 

2 4 happened was, Tom Busfield' s house was right here in this little 

2 5 pink area, okay. 

2 6 And what we later found out was, there was an adjacent 

27 court that also had liquid waste in it but was being monitored, 

2 8 which just came to light today, by Integrated Waste Management, 


which I'm sure of the time you were there. 

But I actually went to Integrated Waste Management, 
reviewed these files. Took a Xerox machine, reguested, did the 
whole process. Reguested that all the files be delivered so that 
I could get up to date on the process. And the women came in 
with a stack of material this high, and I find out that they have 
been monitoring nothing in this court for ten years, and the 
methane was at 40-45 percent; 5 percent is flammable. 

The residents had lived in this subdivision on top of 
these homes [sic] for ten years and had no idea they were living 
on waste, no idea that they were being exposed to 4 0-4 5 percent 
methane . 

CHAIRMAN LOCKYER: This isn't part of the pink area, 
though . 

MS. SCIALABBA: Yeah, this is the pink area. What we 
did — 

CHAIRMAN LOCKYER: It includes the methane area? 

MS. SCIALABBA: Yes, yes. 

CHAIRMAN LOCKYER: What are the pinks? Are they — 

MS. SCIALABBA: Well, as you see, the more investigation 
that you do, the wider the story becomes. 


MS. SCIALABBA: The yellow part is the hydrocarbon area. 
What we found out, what the builder said, "Oh, my goodness." We 
had a public meeting and he said, "My goodness, how could we have 
left this 10,000 cubic yards of waste? Yes, that's all there is. 
Honest, folks, that's all there is." 

Well, needless to say, we did more investigation. We 


1 rooted through more files. We tried to get Cal-EPA to say, "Hey, 

2 we still have the builder here. We have all the contractors 

3 here. We have the graders here. We have everybody who has been 

4 financially involved from the beginning. Interview these people; 

5 find out exactly what the story is; get all the facts. They are 

6 at your fingertips." They do nothing. 

7 CHAIRMAN LOCKYER: When was this now? When were the 

8 houses — 

9 MS. SCIALABBA: When the houses were built? 

10 CHAIRMAN LOCKYER: — built, yes. 

11 MS. SCIALABBA: '81. But we just found this out three or 

12 four years ago. 

13 CHAIRMAN LOCKYER: And who was the builder? 

14 MS. SCIALABBA: South Hampton Homes, who is in 

15 conjunction First Nationwide Bank, who was a shell company that 

16 just sold. And actually, " the new company is Ford Motor. 

17 And the citizens have tried to get their name into 

18 everyone else's mind. We formed a new group called Friends of 

19 Rose Drive. We want FORD's name out there. We want you to know 
2 that there are lots of people who are very intelligent and that 
21 are handling this process. So, we are now the Friends of Rose 

2 2 Drive. We want this — we want this to come to resolution. 

2 3 And that's why I'm here today. That's why I'm dressed in 

2 4 black, mourning for our community, mourning that our city went 

2 5 from the number one place in the Bay Area to the toxic dump area. 

2 6 We're not getting any help from Cal-EPA. 

2 7 We want to wear a rose, and I have one that's going to be 

28 distributed here for you today so you can know that we want Rose 


Drive to go back to being Rose Drive. 

CHAIRMAN LOCKYER: How many homes are in that entire 
subdivision or development? Could you estimate the whole thing? 

MS. SCIALABBA: Well, it's not simple. You see, as we 
discover this, we found what they did was, they started at the 
bottom of the hill. And as they built, they kept moving the 
waste up the hill. 

So, we went from the bottom of the hill, and now we're up 
at Channing Circle, which is an entirely — you know, like two 
miles away from where the original waste was. And this thing 
keeps unfolding, and now we have extra documentation that leads 
us to believe that there are other areas that are not even on 
this map that contain the waste as well. 

CHAIRMAN LOCKYER: So, how many homes in that whole 
subdivision? Is that all one thing, one neighborhood, so to 

MS. SCIALABBA: Yes, basically, basically. 

CHAIRMAN LOCKYER: And can you estimate the number of 

MS. SCIALABBA: The original affected area was probably 
about 50, and now we're probably encompassing probably about 150, 
maybe even more. 


MS. SCIALABBA: The concerns that I have about — I was 
very disappointed to hear that Jesse Huff was involved with 
Integrated Waste Management. Like I said, I was appalled to find 
out that this investigation had gone on ten years. Residents 
knew nothing. Surprise, surprise, wow. What a wake-up call. 


1 I have a problem with Mr. Huff because he was very 

2 unresponsive to us . I tried to get a meeting with him several 

3 times. He refused. 

4 I scheduled a meeting with him. We had people take off of 

5 work. We showed up; he didn't show. We ended up meeting with 

6 Bob Buselieri. 

We sent letters to him. He never responds to our letters. 

8 The first time that I met him, I want to thank you for 

9 this confirmation hearing. Otherwise, I would have never had the 

10 chance to meet him today. I did get to meet him in the hall. 

11 There was a blessing for this assembly to meet at a later date, 

12 because we were all standing out in the hall, and we finally got 

13 to meet. 

14 However, it does disturb me greatly that Browning-Ferris 

15 and the responsible parties know Mr. Huff very intimately. And 

16 that concerns me very well. 

17 As far as I'm concerned — 

18 CHAIRMAN LOCKYER: How is Browning-Ferris in this picture? 

19 MS. SCIALABBA: Well — 

2 CHAIRMAN LOCKYER: Do they own the dump? 

21 MS. SCIALABBA: No, he's industry. 

2 2 Industry seems to get the indoor — 

2 3 CHAIRMAN LOCKYER: They don't own the dump; right? 

2 4 MS. SCIALABBA: No — regular people don't. Okay, that's 

2 5 what my concern is. 

2 6 Is the mission statement for Cal-EPA the welfare of the 

2 7 people, or are they strictly going to get agents for the 

28 polluters? That's the concern that we are now coming to, because 


what we do is, every once in a while, what we have is a big turn- 
around of people who are involved concerning the dumps. We have 
no corporate memory. 

We did have one man who stood up — his name was Stan 
Filippi, at a meeting with Assemblyman Hannigan and said that the 
developer and the investigation on this project would receive a 
"D" rating if he had to give them a grade. Mr. Filippi was 
pulled from this project faster than you can imagine. I could — 
we all had whiplash. He was gone in a flash. 

I want you to know, too, that there are people who are 
doing a good job on this project. If they do a good job, and 
they challenge the developer, and they hold their feet to the 
fire, they are immediately withdrawn. 

And what we have is a retraining process, so that's why we 
are revamped in this process for four years, with eight project 
developments [sic]. No one knows anything. The only continuity 
we have is Tom Busfield, myself, and a few other people who sit 
up at night and read the reports, and then we have to re-educate 
everyone. It becomes very frustrating. 

CHAIRMAN LOCKYER: What happened to Mr. Soo Hoo? Where 
did he go? 

MR. HUFF: He's at OEHHA, the Office of Environmental 
Health Hazard Assessment. 

MS. SCIALABBA: Okay, right now the major concern, the 
big coup that's kind of going on, is that we have all this 
hazardous waste sitting out, covered by tarps in the rainy season 
since September. I'm not a finance major, but September, 
October, November, December, January — five months we have 


1 hazardous waste sitting out, directly adjacent to a park, because 

2 the developer does not want to generate information that he has 

3 Class I waste. He is desperately trying to revamp the system, or 

4 find a Class II waste who is willing to break the rules and take 

5 Class I waste. 

6 There was an attempt to do that in Contra Costa County, 

7 and there were letters written to the Contra Costa County 

8 Supervisors. We wanted them to do samples of the waste. Split 

9 sampling done by the waste [sic] and the developer are a thousand 

10 times different. 

11 I don't know how you can explain that, between the labs. 

12 If I have one complete sample and I split it in half, how could 

13 yours be a thousand times different than mine? I don't know how 

14 that happens. 

15 I have no honesty or credibility in this sampling, in this 

16 testing. 

17 We get a developer who tells us that the leather and the 

18 hides that are buried in that area is harmless. It's just like 

19 children chewing on shoe leather. And that really what we're 

2 getting is our minerals for the day, and we should — just really 

21 shouldn't be concerned about it at all. 

22 Somehow, I find that really hard to believe, and it's 

23 actually very insulting to my intelligence. 

24 So, to get you on line, Friends of Rose Drive, Ford Motor, 
2 5 we want our community back smelling like roses. We're mourning 

2 6 what's happening. Please, no Jesse Huff, no Paul Blais. 

27 Paul Blais is trying to sguelch the process as well. He 

2 8 has taken this whole — 


CHAIRMAN LOCKYER: He's not before us. 

MS. SCIALABBA: I know, but if he is considered as a 
replacement, I want you to — 

CHAIRMAN LOCKYER: Replacement for whom? Oh. 

MS. SCIALABBA: I want it to be known that he has in fact 
removed most of the decision making from the Project Manager, who 
are the technical people. So, now we have finance people making 
technical decisions, which makes absolutely no sense to me. 

I also want to say that Bill Ryan, what we tried to do for 
the state, because we really are very friendly to the state — 
you see, the developer — we were really concerned about the 
state's budget. The developer ran up a $750,000 bill with the 
state. And what we heard rumblings were that the state was going 
to cut staff because you had no money. 

So, we got the City of Benicia to get together with 
Assemblyman Hannigan, had a meeting at City Hall and said, "Hey, 
why doesn't this developer reimburse the state for all of their 
expenses? Why should poor communities suffer because the state 
has no funds to do further investigation?" 

When you have Ford Motor Company, who's just spewing tons 
and tons and tons of money into bad testing that's absolutely 
worthless anyway, and what we really want is the state to do 
their split samples so that we can generate information that 
their testing is a thousand times different. 

Well, we asked — eventually, the City acquiesced. They 
asked the developer. Lots of pressure was put on the developer. 
The state got their $750,000. We supposedly had no people cut 
from this investigation. 


1 So, we went to Paul Blais and said, "Okay, Paul. Now the 

2 City of Benicia is now having a problem. What we want is, we 

3 want to do the same thing. We want to hold the developer 

4 accountable. The City has budget problems at this point in time. 

5 What we want to do is issue a letter of support, telling them 

6 that all the agencies can work together. We present a united 
front, we do want to find the bottom to this project." And 

8 basically, he told me, "No." 

9 I have raised a fuss about that, and I think he has 

10 recanted that position. But there is no cooperation between the 

11 state and the City, and this is making this process a little more 

12 difficult, unless citizens from Friends of Rose Drive get 

13 involved, make this information public, and hold the state to the 

14 fire. 

15 Now, what is the mission statement of the state? Are you 

16 going to be agents for the responsible parties and turn your head 

17 the other way? Or are you really going to look out for the 

18 health and welfare of the innocent people who get caught up in 

19 these toxic waste problems because you have a developer who wants 
2 to take a chance, and it might be a little more expensive than he 
21 really finds comfortable. 

2 2 I have roses that need to be passed out. 

2 3 Thank you so very much for this opportunity. I got a 

24 chance to meet Mr. Huff, and I thank you all for your time. 

2 5 SENATOR PETRIS: Thank you. 

2 6 SENATOR BEVERLY: Is there any additional witness? Come 

27 forward, please. 

2 8 MR. ANGEL: Good evening. My name is Bradley Angel, and 


I'm the Southwest Toxics Campaign Coordinator for Greenpeace USA 

And I'm here in opposition to the confirmation of Mr. 

For the last ten years, I've worked with so many dozens of 
communities from all walks of life in this state, from Northern 
California, to the Bay Area, to Sacramento, to the San Joaquin 
Valley, to Los Angeles, to the Imperial Valley. Upper middle- 
class White folks, poor African-American, Latino farmworkers, 
native. All types of folks. 

And what we know after so many years, and I'm not telling 
you anything you don't know, is that the threat of toxics and the 
impact on people's health and quality of our air and water has 
been severe in many cases, and in many cases if not all, it's 
been avoidable. 

The problems that you ' re hearing about today with the 
State Department of Toxics Substances Control were not created by 
Mr. Huff. Indeed, he inherited them. 

But indeed also, he has done, to our knowledge, virtually 
nothing to correct the problems. And in fact, in many cases, and 
I will touch on a number of those, his agency under his watch has 
contributed to the contamination of our communities, of our 
residents, of our air and water. 

We've heard much talk in the last year or so about our 
state officials being against affirmative action. But I want to 
tell you of one area where our state government supports 
affirmative action, and that is in the siting of hazardous waste 
facilities in communities of color. 

In the State of California, there are three toxic waste 


1 dumps that are licensed by Mr. Huff's agency: Kettleman City, 

2 Buttonwillow, and Westmoreland. Three out of three, 100 percent, 

3 are in Latino, predominantly Spanish-speaking, farmworker 

4 communities. Three out of three, 100 percent. 

5 And in those three, the words "public participation" are a 

6 joke. The claim that the state supports public participation is 

7 little more than a hallucination. 

8 This summer in Buttonwillow, west of Bakersfield, the 

9 State of California, Department of Toxics, held a so-called 

10 public hearing. In fact, was forced to continue it on a second 

11 night. The state, despite the fact that there's a huge 

12 population of monolingual Spanish speakers in the impacted 

13 community, refused to translate documents into the language that 

14 the people understand. 

15 Mr. Huff has said he upholds CEQA, which mandates public 

16 participation. And of course, you know that the Tanner Law, a 

17 state law, is involved in the siting and permit decisions around 

18 hazardous waste facilities. 

19 As I say, the state refused to translate documents. 

2 Department of Toxics Substances Control staff, in front of the 

21 people of Buttonwillow, made the ridiculous statement that the 

2 2 Kern County's permit process for the expansion, proposed 

23 expansion, of the Laidlaw hazardous waste facility was a 

24 legitimate process. 

2 5 And it's unfortunate that they showed their bias at a 

2 6 public hearing when they were still supposed to have an open 

2 7 mind. In fact, I asked a state official point blank this summer, 

28 during a permit meeting in Buttonwillow — in Bakersfield — I'm 


1 sorry, in Buttonwillow, if the Kern County process was 

2 legitimate. They said it was. 

3 For the record, I was arrested under order of the Chairman 

4 of the Board of Supervisors for attempting to testify 

5 bilingually, for stating my name and the organization I worked 

6 for in Spanish, so that the Spanish speaking audience could 

7 understand. I was dragged from the room and thrown in jail. 

8 This is the legitimate public process, so-called, that 

9 Mr. Huff's agency publicly stated was legitimate. 

10 In fact, under the County's implementation of the Tanner 

11 process, there was never a public hearing in the impacted 

12 community. Never a public hearing in the impacted community. 

13 But the state's hearing in Buttonwillow wasn't much 

14 better. It was interesting to hear Mr. Shabazz in South Central 

15 talk about the sound system. 

16 For two hearings, two meetings in Buttonwillow, the sound 

17 system didn't work that the state brought. At first, people 

18 thought it was just a fluke. Now we don't know. 

19 If the state is so impartial, why is it that the 

20 California Pollution Financing Authority, a couple of years ago 

21 — well, actually about four years ago — loaned $24 million to 

22 Laidlaw, including funds for the expansion of a facility, for a 
2 3 decision that wasn't made yet? The people in the community 

24 raised objection to it, as did Greenpeace and others. 

25 Of course, the state responded by saying, "Well, we're not 

26 biased at all." 

27 In Buttonwillow, as in Kettleman City and Westmoreland, 

28 due to their being farmworker communities, where the people are 


1 impacted by cancer-causing pesticides as they work in the fields, 

2 they are also living next to toxic waste dumps. 

3 Our communities need pollution prevention. We need a 

4 reduction of the amount of waste being dumped in our communities 

5 and generated in the chemical plants and petrochemical industries 

6 of this state and others. 

Unfortunately, even though there is sufficient capacity 

8 for landfills in the United States, the Department of Toxics is 

9 working — mark my words, they will issue the approval — to 

10 expand the Laidlaw facility in Buttonwillow, despite the fact 

11 that we have a heavily impacted community, that Laidlaw has a bad 

12 track record, that the process violated state law, and the fact 

13 that pollution prevention and not expanded landfills should be 

14 the priority of the day. 

15 In South Central Los Angeles, I've been there, unlike 

16 Mr. Huff. I was poking around outside that facility, the 

17 Statewide Environmental Services, and the plant manager, a very 

18 nice gentleman, invited me in. Didn't know I worked for 

19 Greenpeace, but he invited me in. 

2 What I saw horrified me. As you heard, right next to the 

21 facility, though the fences are eight or ten feet high, were 

2 2 hundreds of barrels of hazardous waste jammed together, right 

2 3 next to people's homes. 

2 4 There was an open truck getting loaded with hazardous 

2 5 materials that were blowing into the backyards of the neighbors. 

2 6 The material was blowing right over the fence. 

2 7 I was given a tour of the laboratory, which nearly 

2 8 sickened me, literally. The floor was stained with chemicals. 


The garbage can, which said "Clean Everyday", was overflowing 
with stained materials. Opened bottles with what I presumed to 
be hazardous materials unlabled, but with liquid in them, were 
lying on their filthy counter. The room was pretty much 
unventilated . 

Most of the workers there were people of color. 

I assure you that this type of facility would never be 
located in Beverly Hills. It would never be located where any of 
the distinguished Members of this Committee live. And if it was, 
it would have been closed immediately. 

Mr. Huff was not responsible for siting that facility 
there, but if he's serious about his concern, if he's serious 
about putting an end to environmental racism practiced by his 
agency, he will recommend to the L.A. Planning Commission, who's 
taken this matter up, that the facility not receive a new permit. 

Now moving on, the United States Environmental Protection 
Agency, and many distinguished scientists across this country, 
have done a re-assessment of the dangers of dioxin, one of the 
more dangerous chemicals known to science. It is the active 
ingredient that, in Agent Orange, that caused so much harm to 
American G.I.s in Vietnam. 

But that war that was fought in Vietnam is not the only 
place where there's dioxin victims. Across California and the 
United States, we're seeing that. 

What is the Cal-EPA doing about it and the Department of 
Toxics? Nothing to protect our citizens. 

You'll hear in a few minutes from Stormy Williams. Near 
where Stormy lives is the only pay-to-burn commercial incinerator 


1 in the State of California. 

2 No, Mr. Huff was not around when that facility was first 

3 allowed to burn hazardous waste with no Environmental Impact 

4 Report, even though they burn some of the most dangerous 

5 substances we know of. 

6 That facility is up for a permit renewal. Where is the 

7 Environmental Impact Report? I guarantee you, unless things 

8 change, there will be another negative declaration there for a 

9 facility that has a track record of huge violations of the law. 

10 And by the way, the US EPA dioxin re-assessment has 

11 documented that dioxin is not less dangerous than we thought, but 

12 more dangerous. And not just for cancer, but for reproductive, 

13 developmental, and immune deficiencies in men and women. 

14 Another place that the DTSC is less than lax, and in fact, 

15 as far as we're concerned, is in bed with the chemical industry, 

16 and it's unfortunate, but "people from Richmond would have liked 

17 to have been here today. In Richmond, a predominantly African- 

18 American community, they're living under the stacks of the 

19 Chevron Ortho incinerator. 

2 That facility, too, has been on endless interim status. 

21 It is a joke. 

2 2 About a year and a half ago, the state finally got around 

2 3 to saying we want to test burns in that community. The 

2 4 community, Greenpeace and others asked for input for public 

2 5 hearings on that. We were told no. 

2 6 Chevron Ortho is one of the companies that participated in 

27 the state agency's allegedly successful incinerable waste 

2 8 reduction program, which allegedly reduced incinerable waste by 


50 percent. 

Now, if they reduced — participated in an allegedly 
successful program, why is the state even considering allowing 
Chevron Ortho to double the capacity of their incinerator? If 
we're serious about pollution prevention, how could you even 
consider expanding the capacity of an incinerator that is 
adjacent to a school. True, the kids in the school don't have 
white skin. They aren't rich. But their lives are worth every 
bit as much as ours. 

The people in Richmond want some answers. They want that 
incinerator shut down, not expanded. And if you're serious, and 
you're going to follow science and public policy, and not 
participate in environmental racism, that expansion must be 
denied, and we want some answers. 

Mr. Huff said he's interested in public information. For 
all these years, I still cannot get a list to this day, and I ask 
you, will you provide me with the full list of chemicals used and 
emitted from the Chevron facilities? You cannot get a full list. 

Moving on, if Mr. Huff's agency is so interested in 
protecting the public health and environment, how is it that on a 
little Indian reservation called the Cahuilla Reservation, some 
of the aboriginal people of this state, how is it that an illegal 
dump, in violation of federal law, not only is allowed to 
operate, but is given an I.D. number by Mr. Huff's agency? 

Now, it is indisputable that this operation is illegal. 
And the tribal members that I worked with there are not asking 
for the state to stomp on tribal sovereignty. 

What they are asking is that the state not give their 


1 tacit blessing by giving an I.D. number to a blatantly illegal 

2 operation. It is a double standard. It is environmental racism, 

3 and it has to come to an end, but it's continued under Mr. Huff's 

4 oversight. 

5 In Bayview Hunter's Point in San Francisco, there was 

6 recently a study that came out in August. And that study 
documented that African-American women under the age of 50 in 

8 Bayview Hunter's Point, which, as many of you know, is where most 

9 of the dirty industries in San Francisco are located, that 

10 African-American women under 50 in that community have twice the 

11 rate of breast cancer. Twice the rate of breast cancer as women 

12 not living in that impacted community. 

13 And the County of San Francisco now admits that it is tied 

14 to the toxics that have been dumped recklessly in that community 

15 for decades. 

16 Recently, and actually right now, the DTSC is conducting a 

17 review of, guote-unguote, "cleanup options" at a site where yet 

18 another toxic emitting industry is being proposed, a power plant. 

19 There is not ifs, ands or buts about it. This power plant would 
2 emit additional toxics, including carcinogens, into the air of 

21 this already devastated community with some of the highest breast 

2 2 cancer rates known on this planet. 

2 3 In the so-called fact sheets distributed by Mr. Huff's 

2 4 agency, it referred to the power plant as saying "when it is 

25 built." 

2 6 Well, maybe you know something that we don't. As far as 

2 7 we know, there's still a public process going on. As far as we 

2 8 know, that power plant may never be built. 


And if the DTSC was doing its job, it should see to it 
that no new sources of toxic exposure are placed in a community 
where African-American women, or for that matter, people of any 
color, have twice the rates of breast cancer as women not living 
in that community. 

We already know that the Bay Area has some of the highest 
rates of breast cancer in the entire world. But the African- 
American women under 50 have twice that rate. 

And your agency is complicit in the siting of this new 
power plant. We don't need complicity. We don't need silence. 
We need advocacy to protect the public health and environment. 

Unfortunately, I could go on, but I'll stop there because 
I've taken too much time already. 

As I can say, there were a number of communities that had 
hoped to be here, and a representative of the people of 
Buttonwillow had to leave because of the delay in the meeting. 
And if you could bear with me for two minutes, he asked me to 
please read — and I'll give a copy of this to you — a letter 
from Padres Hacia Una Vida Mejor, Parents for Better Living, 
which is the community group representing people in Buttonwillow, 
fighting the Laidlaw dump expansion. January 16, 1996: 
"Dear Hearing Chairperson, 

"This short letter we hope you can 
accept in lieu of our being present at 
this hearing. We are Padres Hacia Una 
Vida Mejor, or 'Parents for Better 
Living', a group of farmworkers from 
Buttonwillow, a small farming community 





























in Kern County. We would have liked to 
been there to express the following in 
person but we need our small daily wages 
to support our families and can not 
afford the cost needed to make it 
possible to go before you. 

M We have been opposed to Laidlaw's 
permit modification application for the 
last three years. We have had to deal 
with California's Department of Toxics 
Substances Control since then also. We 
feel that we have been discriminated by 
them, and that although they pretended 
to hold their hearings, they are still 
going to give this 'corporate polluters' 
the permits "they have reguested and are 
denying everyone else in our community 
the right to raise our children in a 
clean and safe environment. 

"Even before they held the 
hearings, they had provided Laidlaw with 
a low interest multi-million dollar loan 
towards the expansion of the Laidlaw 
facility, which does not 'officially' 
have a permit yet. 

"We need someone who will listen to 
all the facts and to make decisions that 
will not only provide industry to 


California, but that will keep small 
communities like ours from having to 
carry the burden of these polluters. 

"We strongly oppose the 
confirmation of Mr. Huff as director of 
the DTSC because he has made our 
community one of his mistakes. He makes 
the mistakes, and our children and 
future generations carry his burdens. 
"On behalf of Parents for Better 
Living, we thank you for this 
opportunity to be allowed to participate 
in this process. 

"Sincerely, Lorenzo Garcia and Rosa 
Solorio-Garcia . " 
And again, thank you for your time. 

In closing, I would just say that for once, could we have 
a Director of his agency who'll really protect public health and 
the environment, and not just represent the interests of the two 
speakers — if you look at the two speakers who spoke 
recommending him. It was two representatives who work directly 
with the waste industry. One a consultant for the waste 
industry, and one the waste industry themselves. 

And not that those voices shouldn't be heard here, but 
that should paint the picture of the problems we're facing today. 

We need to be solution oriented, but we need somebody 
who's really not going to put up California's — the health of 
Calif ornians up for sale. 


1 CHAIRMAN LOCKYER: Mr. Angel, I think Senator Lewis has a 

2 question. 

3 SENATOR LEWIS: I was hoping you could clarify just one of 

4 your statements for me. 

5 MR. ANGEL: Yes, sure. 

6 SENATOR LEWIS: The study that you talked about, the Black 
women with breast cancer in Hunter's Point. It was twice the* 

8 incidence, is that what you said? 

9 MR. ANGEL: That's right. And if you'd like, I'd be glad 

10 -- I can tell you how to get it, but I'd be glad to get you a 

11 copy. 

12 SENATOR LEWIS: Twice — 

13 MR. ANGEL: Yes, African-American — 

14 SENATOR LEWIS: Compared to whom? 

15 MR. ANGEL: To women not living in that community in San 

16 Francisco, so twice the rates of breast cancer. 

17 SENATOR LEWIS: To women in America? 

18 MR. ANGEL: No, I think San Francisco. 

19 And already prior to that, San Francisco and also, for 

2 example, Marin County were already thought to have alarming rates 

21 of breast cancer. 

2 2 What's clear is, we're seeing that very prevalent in 

2 3 society in terms of dramatic increases. What's also clear is 

2 4 that directly impacted communities, like Bayview Hunter's Point, 

2 5 are even higher than anyone would have dreamed. 

2 6 And Mr. Huff's agency is apparently — 

2 7 SENATOR LEWIS: Not being familiar with Hunter's Point, is 

2 8 that an impoverished area? 


MR. ANGEL: Yeah, African-American community primarily. A 
lot of new Asian immigrants in there. It's right near 


MR. ANGEL: No, no hunting. 

SENATOR LEWIS: Do you have a comparison to breast cancer 
rates to other African-American communities of women under 50 in 
improverished areas? 

MR. ANGEL: Well, we know — first of all, we know that 
there's not adequate studies across the country. In fact, where 
we first heard a lot of these studies with wealthier areas, such 
as Marin County, or even other parts of San Francisco. What is 
now coming — and we heard through more word of mouth 

And, you know, I've worked in Bayview Hunter's Point for 
years, and I knew from talking to people, but this study 
substantiated the incredible rates of breast cancer impacting 
that community. 

Again, it's not the definitive study, but it sure set off 
the alarm bells. And the County of San Francisco has now come 
out and acknowledged that there is some link between those rates 
and the toxics in that community. 

And it's very alarming, and it's kind of like the canary 
in the cage, and it's time that we acted for prevention. 

You know, the DTSC supposedly — Cal-EPA did this 
incinerable waste reduction program, claimed remarkable success. 
We don't know how successful it was. We hope it's as successful 
as they claim. 


1 Again, again we seem them going to expand facilities for 

2 landfills and incinerators. 

3 Now, you can't have it both ways, and we want to know 

4 which way is it going to be? Is it going to be prevention or 

5 profit? 

6 CHAIRMAN LOCKYER: Okay, thank you. 

7 MR. ANGEL: Thank you so much. 

8 MS. WILLIAMS: My name is Stormy Williams. I reside in 

9 the high desert in the town of Roseland. It's between Mojave and 

10 Lancaster. It's where the Space Shuttle comes down at Edwards 

11 Air Force Base. 

12 I'm President of California Communities Against Toxics. 

13 We're a statewide coalition. We work on world peace, pollution 

14 prevention, and environmental justice. 

15 And you have seen today our members in action. And you 

16 have seen the frustration "in their faces and in their voices when 

17 they have talked to you about their individual problems in their 

18 communities. 

19 Mr. Busfield, the two ladies from the Rose Court area, Mr. 

20 Shabazz, who I picked up at the airport this morning, these are 

21 people in our coalition. 

22 We have people in guarter of a million dollar houses. We 
2 3 have people in South Central. We have Indians with nothing. We 
2 4 have the whole gamut. 

2 5 And I am here to talk for all of them, including the 

2 6 Latino gentleman who had to leave because this went on so long. 
27 We formed this coalition to give strength to grassroots 

2 8 groups, because we're under siege in this state. We're totally 


under siege. 

The town I live in has the highest cancer cluster in 
children, the highest rate. We have nine children afflicted, 
seven are dead. I received a call last week, a child that moved 
in '91 has come down with inoperable brain cancer. He's on the 
way out. So, our figures will probably change now to eight out 
of ten. 

I cannot understand why we can't walk down a path for 
health and safety. I don't care what kind of house you live in, 
what kind of car you drive, how much money you make. If you 
don't have your health, you don't have anything. 

CHAIRMAN LOCKYER: Ms. Williams, I'd like you to try to 
comment as much as you can specifically on Mr. Huff and his 


Mr. Huff is looking to be confirmed. One of our problems 
is that I live near National Cement, which is the state's only 
pay-to-burn toxic incinerator. It's been operating for 14 years 
on interim status. It's never had an EIR. 

We had sick people out around there, spent over $4 50,000 
in fines, innumerable problems, and they are now looking to give 
it another negative declaration. 

And we feel that the EIR process in CEQA is being 
circumvented quite often, way too often. 

And I have some fact sheets here and chronologies about 
National Cement. 

Another problem that we have with these negative decs, 
that we got involved in is the PureEtch facility in Salinas. 


1 It's an etchant recycling facility, and they refused to do an 

2 Environmental Impact Report on this facility, which is next to 

3 Latino farmworkers. 

4 CHAIRMAN LOCKYER: Were these on his watch? 


6 CHAIRMAN LOCKYER: While Mr. Huff has been — 

MS. WILLIAMS: We went in with a suit, and here is the 

8 copy of the suit. And the Judge now has demanded a focused 

9 Environmental Impact Report, and I don't see why we have to go to 

10 court. 

11 CHAIRMAN LOCKYER: Where was that? 

12 MS. WILLIAMS: In Salinas. It's called the PureEtch 

13 facility, which is an etchant recycling facility. 

14 CHAIRMAN LOCKYER: Was that CEQA action? 

15 MS. WILLIAMS: Yes, and this is also in the negative 

16 declaration, there was no mention of the Latino farmworkers in 

17 apartments right next to the place. 

18 So, we do not feel that the DTSC over the last year has 

19 proceeded down the road for health and safety. We feel that it 
2 has become more of a permit streamlining and business promotion. 
21 And we don't feel that Department of Toxics Substances Control 
2 2 should be a business advocacy group. That should be left to the 
2 3 Commerce Department or other departments. 
2 4 And I do represent a lot of people who are 
2 5 disenfranchised, and we feel that everybody in this state 
2 6 deserves their health and safety taken care of first, and 
27 business interests have to come in under people's health. 
2 8 And this is the paperwork on the PureEtch suit, if you'd 


like to pass it. And this is the fact sheet and chronology on 
National Cement, so you can see exactly what's been going on over 
the last 14 years that we've been putting up with this place. 

And in addition to this, where I live we have 24 toxic 
sites, including the state's worst toxic site with the highest 
dioxin level. And some of the cleanups there are very slow, even 
though some of the responsible parties can pay. Some of them 
seem to be stymied, and I don't understand why when there is 
money available. 

And I did want to mention that we have some project 
managers that have done a pretty good job in our community, and 
we don't just run around complaining about everybody in this 
Department. But we don't feel the leadership for health and 
safety is here when Mr. Huff has been at the watch. 

Thank you. 

CHAIRMAN LOCKYER: Thank you, ma'am. 

Is there any other? Senator Lewis. 

SENATOR LEWIS: Can I just ask a question? Just another 
point of clarification. 

The cancer cluster that you identified with the ten young 
children, that's over what period of time and that's encompassing 
how much population? 

MS. WILLIAMS: The ten at the time of the cancer cluster 
was approximately 3,000 people. The timeline was about '74 to 
•83. There was nine children afflicted. Their ages ranged from 
3 to 17. Seven died, and over half of the seven died of a very 
rare brain stem cancer. 

They've done three studies, and they got part way through 


1 the last study when the Dunsmuir spill happened, and they had to 

2 take the money and go up there, so they've never finished the 

3 study. 

4 So, the parents of these children will probably never know 

5 what caused the death of these children. And now, as of last 

6 week, we have another one. 

7 SENATOR LEWIS: Thank you. 


9 Any additional comment? 

10 MS. WILLIAMS: Good morning, Chairman, Members of the 

11 Committee. 

12 Senator Lockyer, just to jog your memory, the last time we 

13 met it was with the Mexican Delegation from Baja. 

14 I'm Jane Williams with Desert Citizens Against Pollution. 

15 As well, I'm an affiliate member of California Communities 

16 Against Toxics, and I do quite a bit of work in Sacramento for 

17 that group, and I've had the occasion to work with Mr. Huff over 

18 the last year. 

19 And in his defense, I will say that he's been much more 

2 responsive to the needs of community groups than his predecessor, 

21 Mr. Soo Hoo. 

2 2 However, we have a new set of problems which Members of 

2 3 the Legislature in general need to be aware of, and this 

24 Committee especially. 

2 5 I want to start out with the dioxin report which was 

2 6 previously mentioned, but I want to reiterate the fact that over 

27 the last year, I've asked repeatedly for the kinds of health risk 

2 8 assessment that was done in the dioxin report, which is the 


state-of-the-art health risk assessment, to be reflected in the 
decisions of the Department of Toxics Substances Control. And 
I've been told over, and over, and over again that the Department 
is not going to review the report until the report is finalized 
by the EPA. 

I've spoken with Mr. Becker from OEHHA and also various 
members of the Department. 

The impact of this is that the State of California 
continues to produce hazardous waste as a result of its economic 
practices. However, the risk of the continued production of that 
waste is not being taken into account here. 

The state is continuing to expand its capacity to both 
landfill and burn waste without a cohesive and cogent pollution 
prevention plan. 

What does this mean for the State of California? It means 
that we are destined to inherit more Stringfellow acid pits. 

Now, I'm an environmental economist. I understand the 
political process very well. I know that it runs, just like 
everything else runs, it runs on money. 

The state currently is liable for $750 million at the 
Stringfellow acid pits. The federal court decided that because 
the state had permitted the facility, it allowed the dumping to 
take place there. 

Now, California has that under appeal. 

Gentlemen, if we lose that appeal, we become liable for 
$750 million for only one toxic repository. The state currently 
has Stringfellow and Casmalia that are both environmental 
catastrophes, and we have three operating facilities now, one of 


which is leaking. 

I am very concerned about the fiscal impact that the state 
is going to bring upon itself in continuing to expand the 
production of the hazardous waste in the state without coming to 
grips with this. 

When we expand the ability of the Laidlaw facility in 
Buttonwillow to bring in waste, we expand along with it the 
potential in the future for the state to bear the cleanup cost 
because of this court decision. 

The orphan shares, when a company goes out of business and 
is no longer there to be a PRP, the state has to take up that 
orphan share. The bill for that orphan share now is anywhere 
from $30-40 million per year. That's the cost that the state is 
going to have to bear. 

And as an economist, I really think that we need — that 
the State Legislature really needs to be aware of this. When you 
understand that the continued production of hazardous waste in 
California has a real cost, it has a real cost. It's $40 
million; it's $750 million; it's a billion dollars. It's a cost 
that is rising at an escalating rate. 

And to that end, I believe that we cannot afford not to 
have a pollution prevention plan. And you probably remember, 
Senator Roberti passed SB 14 , which was an attempt at some sort 
of pollution prevention, which Mr. Huff and his Department is 
basically failing to implement. And I believe that we need 
Mr. Huff and whoever is his predecessor to grapple with this 
issue. The costs are going to be staggering. 

CHAIRMAN LOCKYER: Would you go back to Stringfellow for a 




What happened with respect to the court decision? 

MS. WILLIAMS: The court ruled that because the state had 
permitted the facility, the state decided under what conditions 
companies would be allowed to dump their wastes there, that it 
bears the cost for the cleanup. 

CHAIRMAN LOCKYER: This was what court? 

MS. WILLIAMS: This was a federal court. This was a year 
and a half ago. 


MR. HUFF: Well, I can speak to that. 

The essential outlines are close to what Ms. Williams 

MS. WILLIAMS: That's under appeal, I believe; right? 

MR. HUFF: Yes. 

MS. WILLIAMS: Of course, you appeal that decision. 

But the cost, the potential cost to the State of 
California is staggering. 

CHAIRMAN LOCKYER: I heard the number. 

MS. WILLIAMS: That's only for one. That's only for 

Now we have Casmalia. We have Operating Industries. We 
have BKK. We have the two Laidlaw facilities. We have Kettleman 

When we are continuing to expand our capacity to bring 
waste in and to burn waste, we are bringing upon ourselves this 
horrible cost. 

Now, under the regulatory structure program, as you 


1 probably well know, the Legislature has not passed over the past 

2 couple of years any legislation that would deregulate 

3 California's hazardous waste. We still have much of the waste 

4 produced in this state because it is called "California-only" 

5 hazardous waste. 

6 Part of the regulatory — the internal regulatory reform 

7 process that the Department of Toxics Substances Control is 

8 undergoing under the leadership of Mr. Huff is to deregulate that 

9 waste, meaning that it will not go to Buttonwillow, it will not 

10 go to Kettleman City, it will not go to the Laidlaw facility in 

11 Westmoreland. Rather, it will go to a municipal waste dump. 

12 It's taking it from one pile and putting it into another. Now, 

13 basically, turning all the municipal waste dumps in the state, 

14 potentially, into toxic waste dumps. 

15 This internal regulatory reform, this changing of the 

16 disposal costs, where the disposal costs will then go down, will 

17 only increase the amounts of waste, and again, contribute to this 

18 potential problem in the future. 

19 To bring all this together, this is why I think it is so 
2 important, and why many of you have seen me in this Legislature 
21 for the past four years, fighting to keep the California 
2 2 Environmental Quality Act. 

2 3 There is no law in this state that tells people or 

2 4 protects people from being poisoned. There's no law against 

2 5 companies or corporations poisoning people. 

2 6 However, there is a law against not telling them, and 

27 that's CEQA. And this Department is refusing, despite what 

2 8 everyone says, to implement CEQA. And let me give you the most 


1 egregious example I can possible think of. 

2 Short of atmospheric nuclear weapons testing, the single 

3 most dangerous and hazardous practice is the incineration of 

4 nuclear waste. The incineration of nuclear waste leads to the 

5 release into the atmosphere of nuclear waste. 

6 Lawrence Livermore Lab is building a nuclear incinerator 

7 in California, telling the Department it is a treatability study, 

8 and continuing to build it without any permits and without any 

9 Environmental Impact Report. 

10 The other five Department of Energy sites in California 

11 have had their site treatment plans for the onsite disposal and 

12 treatment and transport of mixed nuclear waste, which is nuclear 

13 waste that's contaminated with hazardous waste — we're talking 

14 about large amounts — without a negative declaration. No EIRs. 

15 Simply a rubber-stamp from the Department of Toxics Substances 

16 Control: trust us. 

17 Now, when DOE says "trust me", the first thing I think 

18 about is another human radiation experiment, and that's exactly 

19 what's happening. 

2 I think that the Department of Toxics Substances Control 

21 has a moral imperative to protect the human health and the 

22 environment. 

23 Now, California Communities Against Toxics is concerned 

24 about the environment, but I have to tell you, we're much less 
2 5 concerned about the environment than we are about human health, 

26 especially the health of our children. And when we start talking 

27 about the building of a nuclear incinerator in this state without 

28 any Environmental Impact Report, and without adequate oversight 


1 by the Department, that's enough to make my hair stand on end. 

2 I could go on, but in the efforts of time, to summarize, I 

3 will leave it strictly under the leadership of Mr. Huff. 

4 We have a lack of regulatory oversight over very dangerous 

5 activities taking place in the state. 

6 We have a lack of leadership to protect the fiscal impact 
to the State of California, which Mr. Huff, I'm sure, is very 

8 well aware of. 

9 We have the failure to implement the California 

10 Environmental Quality Act, which is really all that stands 

11 between the community groups, the citizens of this state, and 

12 toxic industries and hazards that come into them. 

13 And now we have the Department of Toxics Substances 

14 Control rubber-stamping the site treatment plans for the six DOE 

15 facilities in this state, and looking the other way while 

16 Lawrence Livermore Labs build a toxic incinerator. 

17 Thank you for the opportunity to testify. 

18 CHAIRMAN LOCKYER: Thank you. 

19 It may be a point worth making that at least in recent 

2 elections, those that believe CEQA and other such laws are unduly 

21 burdensome have been winning elections, so that the trend is, and 

2 2 there's now one House of the Legislature that's probably ready to 

2 3 discard CEQA entirely, and I don't know what number in my House. 

2 4 I'd better not guess, some, who would. 

2 5 But anyhow, I just make the point that the trend is 

2 6 contrary to the general points that have been made. 

2 7 Senator Petris. 

2 8 SENATOR PETRIS: I had a question on the Livermore thing, 


1 the Livermore facility project. 

2 That's funded by the feds, I guess. Both Department of 

3 Energy in the federal government has a role, and the state has a 

4 role. 

5 Who ' s the moving party on this one? 

6 MS. WILLIAMS: The moving party is the Department of 

7 Energy . 

8 Just to give you a quick, 30-second background. In 1992, 

9 quite frankly, the states became very upset about the mixed waste 

10 management and passed a federal law giving the state oversight 

11 over mixed waste. And that oversight was granted under RCRA. 

12 So, because we're a RCRA-authorized state, DTSC authorizes our 

13 RCRA program. 

14 SENATOR PETRIS: So it's under state jurisdiction then? 

15 MS. WILLIAMS: The state has the ability to say yes or no, 

16 to modify the plans, and to reject the plans. And this state has 

17 basically in this instance rubber-stamped all six of the — all 

18 five of the plans. The sixth is still under review. 

19 So, the state has an oversight role, although it is funded 
2 by DOE and it is a DOE project. 

21 CHAIRMAN LOCKYER: Other questions? 

22 Thank you. 

2 3 MS. WILLIAMS: Thank you. 

24 CHAIRMAN LOCKYER: Have we heard all testifiers, other 

2 5 than Mr. Huff? 

2 6 Are there any issues that you haven't heard discussed 

27 before that you heard this afternoon, or are you familiar and 

2 8 prepared to comment on each of the matters that were discussed? 


1 MR. HUFF: I think I can comment on each of the ones. I 

2 have anticipated some, and my staff has anticipated others. 

3 It is true that — 

4 CHAIRMAN LOCKYER: It seems to me that there's enough sort 

5 of specific allegations that a specific response is called for. 

6 MR. HUFF: I think I can. I took some notes as I went 

7 through this. 

8 I think it is true that some of the comments have not 

9 previously been communicated to me, and I would begin by saying 

10 that I do believe in open government. I think that my record at 

11 the Integrated Waste Management Board demonstrates that, where 

12 for four years, I sought to open up the Board's processes. And I 

13 think most people who interacted with the Waste Board during that 

14 time agree that the Board's processes did, in fact, become more 

15 open. 

16 When I was Director' of Finance, I took pride in sharing 

17 information as it became available with Members of both parties 

18 of both Houses. And I think that people who dealt with me then, 

19 from all stripes, would agree that it was as open a process as 
2 the Department of Finance could run. 

21 So, I do believe in open government, and I take exception 

2 2 to those who would suggest that I practice anything other than 

2 3 that. 

2 4 I don't know how to practice anything other than open 

25 government. I've worked for this government for 24 years. I 

2 6 worked for the Assembly for one year, for the Senate for ten. I 

2 7 point with pride at those years of service, and I continue to 

2 8 point with pride at them. I learned a lot from the people I 


1 worked in the Legislature at that time. 

2 The opposition to my confirmation, I think, can be 

3 categorized to some degree, and let me begin with the CEQA 

4 issues. 

5 CEQA is a law that the Department of Toxics Substances 

6 Control had trouble implementing early in its history. And 

7 there's no denying that, and I think that you heard a number of 

8 people say that. 

9 I think that you also heard at least some people say that 

10 we've gotten better. And the fact is that we have. And some of 

11 that wasn't my doing, but some of that has been a continuation of 

12 things under my watch that happened earlier. 

13 One thing that happened in the early '90s was, the 

14 Department took steps to consolidate CEQA control functions in 

15 Sacramento, rather than allowing each of our regions to interpret 

16 and apply CEQA differently. There was a consistency problem. It 

17 doesn't exist now. 

18 The Department follows CEQA process that begins with 

19 taking a look at a project. And a project generally will fall 
2 into one of three categories. 

21 In some instances under the law, a full EIR is reguired; 

2 2 there's no guest ion. Major projects, incinerators, those sorts 

23 of things, the law reguires a full EIR. 

24 Some projects will be exempt, and there are some court 

25 decisions and some categories where the project plain is exempt 
2 6 from CEQA. 

27 Then we have the middle. 

28 CHAIRMAN LOCKYER: What would it be? 


1 MR. HUFF: For example, in a recent court decision, called 

2 the McGurk decision, it says that if you have a facility that has 

3 its permits, might have pre-dated CEQA, is operating today, comes 

4 forward for a permit renewal, if the circumstances of that 

5 facility haven't changed, they're exempt. 

6 CHAIRMAN LOCKYER: So, the high desert incinerator, for 

7 example — 

8 MR. HUFF: National Cement, it's a debatable point with 

9 regard to National Cement. 


11 MR. HUFF: And again, that debate will take place, but — 

12 CHAIRMAN LOCKYER: That's not necessarily in that bundle. 

13 MR. HUFF: It's not necessarily in that bundle; it could 

14 be. 

15 CHAIRMAN LOCKYER: Pardon me, you were going to say 

16 there's a third. 

17 MR. HUFF: The third is the middle ground. There you 

18 begin with doing an initial study. The Department does the 

19 initial study. State law reguires that. 

2 The Department uses trained environmental scientists, and 

21 I must say that the educational level of the Department of Toxics 

2 2 Substances Control far exceeds any other department I've ever 

2 3 seen or worked with. They're bright people there. They're 

2 4 committed to protecting human health; they're committed to 

2 5 protecting the environment. 

2 6 It begins with an initial study conducted by trained 

27 environmental scientists. They go through the Department's 

28 established policies and procedures. They implement statewide 






























guidelines. It's a process that they follow precisely. 

From the initial study, one makes the determination as to 
whether there are any significant environmental impacts. If 
there are, then an EIR is indicated. If there aren't, then you 
will have a negative declaration, or perhaps a mitigated negative 
declaration, both of which are anticipated and authorized under 
the law. 

Now, there has been some debate as to how often the 
Department uses mitigation, and how often we use negative 
declarations. And part of the answer to that debate is, the 
Department is requiring more full EIRs now than they used to be. 
We still do a lot of mitigated negative declarations. In fact, 
our permit standards and our requirements themselves act as 
mitigation factors with the facility. So, we do have negative 
declarations . 

And in the PureEtch instance, we went forward with a 
negative declaration, and the court did order a very focused EIR. 
The focus was on catastrophic failure. In fact, the judge 
allowed as how we had covered everything else in the negative 
declaration, but the scenario of a catastrophic failure, he felt, 
needed a focused EIR. And that work will proceed. 

And, in fact, I've instructed staff to incorporate into 
our policies the consideration of the judge's findings in this 

As we continue with CEQA, as we continue to compile case 
law and experience, it naturally builds on itself, and we 
continue to evolve. 

I, in fact, issued a memorandum to my Department just this 


1 month, reaffirming the Department's commitment to compliance with 

2 CEQA, and stating that: 

3 "it remains the policy of DTSC that all 

4 programs fully comply with the 

5 reguirements of CEQA and the policy, 

6 procedure and guidance documents prepared 

7 by the Office of Program Audits and 

8 Environmental Analysis." 

9 That is our policy. 

10 In response to expressions of legislative concern, 

11 particularly in the Budget Act of 1994-95, where concern about 

12 negative declarations was expressed, the Department has engaged 

13 in an internal review of our CEQA process. We've contacted 

14 people who deal with us, including some who have testified before 

15 you today. 

16 The report is in its draft stages now. It will be 

17 released next month. But the report indicates that there are 

18 some areas where the Department can make some further changes in 

19 its CEQA process. And I can tell you that we will be moving 
2 forward on those. 

21 They are such as adopting the latest version of the 

2 2 Resources Agency checklist when we do an initial study. We're 

2 3 using an older version, and we should be using the newer version, 

2 4 is one of the recommendations. 

2 5 An area of controversy is establishment of a baseline for 

2 6 CEQA studies: just exactly where do you stop, where do you start 

2 7 for your CEQA study, and that's an issue that we should adopt a 

28 policy on. We'll have to work our way through that one, but we 


will be doing that. 

So, there's some areas where the Department can continue 
to improve its CEQA application. 

But I would suggest to you that we've come a long, long 
way. We're continuing to make progress, and it is our policy to 
make progress. 

So, that's the CEQA case in a nutshell, I think. 

With regard to South Hampton, it would have been very easy 
for the developer, I think, to also be here complaining about the 
Department . 

In South Hampton, you have a terrible situation: homes on 
top of what used to be a landfill. And I think we all can 
identify that and say that, "There but for the grace of God," you 
know. It's a terrible situation. 

I can tell you that my staff has found this situation not 
only a terrible situation, but very difficult to deal with the 
developer involved. It took some time to reach a consent 
agreement with this developer, but we did. And we reached a 
consent agreement with the developer in the spring of this year, 
whereby we then can require this developer to clean up the mess. 

Since we don't have a whole lot of state cleanup money, 
this is, I think, the most appropriate remedy, is to require, 
with the Department's oversight, require the developer to clean 
up the mess. And we reached, as I said, a consent agreement with 
the developer in the spring. 

Now, our mission is protection of human health and the 
environment, and that's what we're attempting to do at South 
Hampton . 


1 At South Hampton, the full nature of the contamination, 

2 the location, the depths, is still not known. There's still 

3 investigative work to be done. There are still endangerment 

4 studies to be done. This is what we are requiring the developer 

5 to do now. 

6 In some instances, we've angered the developer because he 

7 thinks that we're on the side of the residents. 

8 SENATOR AYALA: On that point, do they allow developers to 

9 develop next to a site? 

10 MR. HUFF: Well, in this instance, a developer was allowed 

11 to clean up a site — 

12 SENATOR AYALA: He cleaned it up before he developed it. 

13 MR. HUFF: Allegedly. 

14 SENATOR AYALA: Before or after he developed it? 

15 MR. HUFF: The problem was — before he developed it. But 

16 the problem was that it wasn't really cleaned up. 

17 SENATOR AYALA: It wasn't cleaned up by the developer? 

18 MR. HUFF: That's right. 


2 MR. HUFF: So, the first time we angered the developer was 

21 in the summer, when we went and ordered that some of the areas 

2 2 involved be fenced and posted. The developer thought we were 

2 3 siding with the residents, prejudicing his ability to defend 

24 himself against their lawsuit. 

2 5 Most recently, we've angered the developer by rejecting a 

2 6 preliminary endangerment study as being poorly done, and then 

2 7 rejecting an investigation that, likewise, we thought did not 

2 8 meet our requirements. 


So, we've got both sides angry at us in South Hampton, and 
I'm sorry for that. 

We're trying to forge ahead, again, trying to get the 
place cleaned up, because nothing has — nothing will be 
happening without some effort towards forcing the developer to do 
something. But at the same time, there's this major lawsuit over 
civil damages that's hanging over everything. 

I can guarantee you, my staff have no love lost for the 
developer. And I can guarantee you that my staff is a committed 
staff toward cleaning up the problem at South Hampton. 

CHAIRMAN LOCKYER: One of the points that I seem to recall 
them making, although it's very hard because you kind of get into 
all the detail, and he-said-she-said, and it's sort of hard to 
follow all those things if you weren't there for the course of 
the discussion, but there seemed to be a claim that the 
representatives from the Department kept getting rotated in and 
out, and lack of expertise and follow-up as a conseguence. 

Do you have any observations about that? 

MR. HUFF: There has been some I would say evolution of 
staff. We have taken care that when someone changes an 
assignment, there's a phase-in and an overlap. 

We have, however, several major areas and a limited staff, 
and we have to make sure that, for example, if we have someone 
who is expert in a certain aspect of hydrogeology, and they're 
not as reguired in one area, that they can transition over into 
another area, such as Stringfellow. 

Which is a good segue, if you have no other South Hampton 


1 CHAIRMAN LOCKYER: Str ingf ellow . 

2 MR. HUFF: Ms. Williams characterized Stringf ellow. I'd 

3 characterize it with just one difference. 

4 The reason the state is 100 percent liable is that in the 

5 beginning, when Stringf ellow was being sited, the Water Resources 

6 Control Board then actively promoted the site. It was believed 
-- Stringf ellow' s located northwest of Riverside, California, in 

8 the hills. You fly over it as you fly into Ontario Airport. 

9 It's in a bowl. 

10 It was said to be impenetrable granite, rock. 

11 CHAIRMAN LOCKYER: When was that, what year? 

12 MR. HUFF: In the late '50s, early '60s. 

13 CHAIRMAN LOCKYER: That the state was an advocate? When 

14 the state was actually an advocate — 

15 FROM THE AUDIENCE: The state was an advocate. 

16 CHAIRMAN LOCKYER: What years? 

17 FROM THE AUDIENCE: '50s, '60s, around there. 


19 MR. HUFF: The site operated from '56 to '72. 
2 CHAIRMAN LOCKYER: That would have been — 

21 MR. HUFF: Thirty-four million gallons of waste. 

2 2 CHAIRMAN LOCKYER: No, actually for the siting, if it 

2 3 started operating in '56, there must have been some work then in 

2 4 the earlier '50s. I guess it would be Goody Knight. 

25 MR. HUFF: Thirty-four million gallons of waste: acid 

2 6 waste, pesticide manufacturing waste, metal finishing waste. All 

27 this stuff placed in unlined ponds. 

28 In the early '80s, all the ponds were drained. It went on 


the Federal Superfund list in '81. 

Court cases have followed, and because of the state's role 
in promoting, that's why we're liable. And that's being 

It's also true that at that period of time, the state had 
liability insurance. 

CHAIRMAN LOCKYER: They had some insurance they could go 

MR. HUFF: You see, now days, insurance carriers write a 
clause that — 

CHAIRMAN LOCKYER: Right, that excludes. 

MR. HUFF: — that excludes us. They didn't then. 

We will go to trial — 

CHAIRMAN LOCKYER: So that carrier might be responsible 
for the 850 million, or whatever? 

MR. HUFF: I think that's a little high, but yes. We will 
go to trial with the insurance carriers — 

CHAIRMAN LOCKYER: Is it one or a bunch? 

MR. HUFF: The first digit's probably a four or a five. 

CHAIRMAN LOCKYER: No, no. I mean one insurance carrier? 

MR. HUFF: Oh, it's a bunch. 

CHAIRMAN LOCKYER: A bunch of them? 

MR. HUFF: It a whole bunch. And you know how they do 
this business with — 

CHAIRMAN LOCKYER: Excess carriage. 

MR. HUFF: Yeah, all that stuff. 

The depositions have already started in preparation for 
the trial. The trial will probably be sometime in '97 in 


1 Superior Court in Riverside County. So, that's the Stringfellow 

2 tale. 

3 But I don't think that we're repeating Stringfellow, is my 

4 point. 

5 CHAIRMAN LOCKYER: Well, that would be the important thing 

6 for us. 

7 MR. HUFF: Yes, because these places are no longer 

8 unlined. Liquids have to be solidified. 

9 The process today is so incredibly different. It's like 

10 the Wright Brothers' airplane compared to the Space Shuttle; 

11 compared to Stringfellow in '56 and what's required in a Class I 

12 facility now. 

13 So, I don't think that we're repeating the mistake. I 

14 hope we learn from our mistakes. 

15 Environmental racism and environmental justice. I don't 

16 know that I need to say this, but after 24 years, this is the 

17 first time that it's been suggested that I condone or even 

18 promote such a policy. 

19 The fact, I think, is that with regard specifically to 

2 Statewide Environmental Services, they're a business. They're a 

21 business that my Department has inspected, found violations, and 

2 2 fined on more than one occasion. 

2 3 But they're a business that, right now, have a land use — 

24 a valid land use permit from the County of Los Angeles, and have 

2 5 been grandfathered in to interim status under state law. They're 

2 6 now coming forward for a permit. 

2 7 We have asked our lawyers in the Department, based on the 

2 8 inspections, based on the track record of SES, can we just say to 


the company: don't even bother; don't come to our door. And the 
Department's lawyers say that we'd have a serious due process 
problem if we did that. 

I would suggest to you that if someone comes forward with 
a permit, we need to go through the process. It's one of the 
things I've learned in 24 years, is that the process is very 
important. Very important for it to be open, very important for 
it to be fair, but very important that government follows the 

So, I would suggest to you that we really are compelled to 
follow the process. 

One thing that the Department did do is that it is 
reguiring a supplemental EIR. And the focus of the supplemental 
EIR is alternative locations. 

Now, I was disturbed to hear from Mr. Shabazz that he 
found the process of scoping that supplemental EIR to be 
deficient. And I'm going to look into that. I'll be glad to 
report the results to the Committee. 

But it truly was a response to the concerns of the 
community, is to require a supplemental EIR and focus that 
supplemental EIR on alternative locations of the facility. 

The fact of the matter is that the NRDC has entered into 
litigation over the location of that facility. And named in that 
location [sic] are the facility and the County of Los Angeles, 
not the Department of Toxics Substances Control. 

I do believe that it is a local land use decision. 

Our Department, not withstanding some of the comments 
about our public participation, our Department has, I believe, 


1 the model public participation program in this country. Maybe we 

2 can make it better. I'm sure we can always make things better. 

3 But we do. 

4 We've been considered the model for US EPA. Not only 

5 public hearings, but we engage in not only public hearings which 

6 are reguired by California law and regulations, but also public 

7 workshops that precede the hearings. 

8 Although not reguired anywhere in California regulation or 

9 law, we do translate essential information, our fact sheets, into 

10 the appropriate language. 

11 We do have, of course, the reguired public hearings for 

12 permits and the whole open process. We've applied this process 

13 to both the California-only, the so-called California-only 

14 business, and the RCRA business. 

15 So, I believe that our public process is geared to making 

16 sure that no one wakes up with suddenly, to their surprise, a 

17 toxic waste facility across the street from themselves. 

18 Like I said, you can always communicate better. We can 

19 always make strides, too, in public participation. 
2 SENATOR PETRIS: On that point, Mr. Chairman. 
21 Did you have any knowledge of this fellow that was hauled 
2 2 away to jail because he was speaking in another language or 
23 offered a paper? 

2 4 MR. HUFF: I'm aware — I wasn't aware of that instance. 

2 5 I have heard of Mr. Angel before. 

2 6 SENATOR PETRIS: Have there been other persons similarly 

27 treated? 
2 8 MR. HUFF: Not by us. Of course, that was by the Kern 


County Board of Supervisors. That was the local board. 

And again, you do have local land use issues, and how 
local governments determine local land use issues, I'm not going 
to answer for. 

SENATOR PETRIS: Well, that's right. You have enough to 
worry about in your shop. I understand that. 

MR. HUFF: Yeah, I don't get to do local land use.' I'm 
not sure I want to. 

CHAIRMAN LOCKYER: It was the Kern County Board, so they 
were probably busy with UFO sightings. 

MR. HUFF: So, I've done environmental justice, CEQA, 
South Hampton. 

I just want to say that in one specific instance, the 
meeting with the South Hampton people, they met with my Chief 
Deputy. There was a scheduling conflict. It wasn't like I was 
ducking them. I'd be glad to meet with them. 

I told Mr. Shabazz that I would meet with him the next 
time I'm in Southern California. I'll go to SES with him. 

I don't mind meeting with people. 

Finance people making technical decisions, that's not 

We have the best trained environmental scientists in the 
State of California working for the Department. A lot of people 
with Ph.D.s; a lot of people very committed to the environment. 

They wouldn't stomach nontechnical people making 
decisions, and they shouldn't. 

My responsibility is to make sure that the resources of 
the Department are marshaled and allocated appropriately. And 


1 that California law is implemented and applied appropriately. 

2 I'm not going to try to distinguish between one molecule 

3 of dioxin and another. 

4 SENATOR PETRIS: On that point, we've run into this 

5 problem before in another context. I, personally, in the 

6 pesticide field related to agriculture. 

We had several hearings on just what happens in the 

8 department. And I was shocked to learn that although the state 

9 has, as you said, some of the top scientists in that field, and 

10 they study a problem objectively, and they have to come to some 

11 conclusion as to whether a particular pesticide should be 

12 registered or should be banned because of its toxicity, and so 

13 forth. 

14 And the scientists would come to a conclusion on some of 

15 them that they shouldn't be registered. Where upon, their 

16 political overseers in the * department overruled them, and ordered 

17 that they be registered. 

18 This is way back. It was under Deukmejian's 

19 administration. I'm sure it's happened at other times, too. 
2 I've never seen an attack on the integrity of the 

21 scientists who work for the state over the years. Everybody 

2 2 agrees they've been very competent, highly trained, objective, 

2 3 and full of integrity. 

2 4 But they don't make the final decisions. All they do is 

2 5 recommend. And it's up to the agency head, or some steps below 

2 6 the agency head, to decide whether that recommendation's going to 

27 be followed or not. 

2 8 MR. HUFF: I have never overruled, in one year at the 


Department of Toxics, and four years at the Waste Board, I've 
never overruled and substituted my judgment for a scientific 

Very frequently, I will find that scientists at my 
Department will take their science as far as it goes and say, "At 
this point it becomes a policy. How much risk do you want to 
accept in society from this?" But that is a policy call. 

But I won't tell them to say there is no risk. I will not 
substitute their — the risk number that they generate. I will 
not make it different. 

When they reach the point they say, "This is your policy 
choice," then I will exercise — 

SENATOR PETRIS: That's the way it should be done. But in 
those instances, that's not the way it happened. This is a long 
time ago, but when we talk about the scientists, I want to come 
to their defense because they've been straight, straight-forward, 
I should say. 

MR. HUFF: With regard to the dioxin study, DTSC is 
commenting to the feds on the dioxin study, along with Cal-EPA 
agencies through the Office of Environmental Health Hazard 
Assessment. So, we are participating in that. We are commenting 
back to the feds. 

Let's see, any other specifics? 

The regulatory structure update, which Ms. Jane Williams 

The thrust of the regulatory structure update is not to 
deregulate California only. There may be some sentiment to do 
that in the business community, there may be a lot of sentiment 


to do that in the business community, and there may be some 
sentiment to do that in some places politically. 

I have publicly stated that in my view, California is not 
Kansas. We are unique. We have unique circumstances here that 
require us to ask the question: what is necessary to protect 
California, and the public health of Calif ornians and the 
environment of California? We have 16 different microclimates. 
We have economic activities that take place no other place in the 

We are unique. We have concentrations of people and 
numbers of people that are far different than other places in 
this country. 

We need to ask the question relative to California, what 
is necessary to protect California's health and California's 

But at the same time', there are regulations that get in 
our way that we've created. I'll give you an example. 

The utility industry has to clean its boilers from time to 
time, and the liquid that it uses to clean the boilers has been 
characterized, when they're finished, as hazardous, which means, 
then, that they have to go through all the hazardous waste 
process, manifest it, get it properly disposed of, et cetera. 

Yet, they've found that it is a useful substance in 
abating hydrogen sulfide at PG&E at the Geysers. 

Now, it would make sense environmentally to use that spent 
boiler cleaning fluid, to take it to the Geysers and abate 
hydrogen sulfide, which kills people, or could. 

But because of our regulations classifying it as 


hazardous, it becomes economically prohibitive to do that, so 
that use virgin chemicals to combat the hydrogen sulfide, and 
dispose of this substance that otherwise could be used. 

In our regulatory structure update, we're going to change 
that. It'll be economical to use, recycle, if you will, this 
substance that they take out of cleaning their boilers, and it 
will achieve the goal of abating hydrogen sulfide, and no new 
virgin chemicals will be used. It's a plus for the environment, 
and it's a plus economically. 

It is not always a question of profit or pollute. 
Sometimes, good economics is pollution prevention. 

Those are the sorts of regulations we are trying to 
promote, and we are very active, and are taking a very active 
interest in pollution prevention. 

The total amount of hazardous waste in this state has gone 
down. Not withstanding over the decades increase in economic 
activity, increase in population, the total amount of hazardous 
waste has gone down. 

That's partly the result of the SB 14 process, partly a 
result of people realizing, corporations realizing, that 
hazardous materials, hazardous substances are an economic drain. 
They cost a lot of money to manage and to dispose of. 

So, I don't think that it's necessarily an issue of profit 
or pollution. I think that, properly structured, our regulations 
can foster better environmental compliance, and certainly more 
understandable and easier environmental compliance. And that's 
what we're looking for. 

Did I miss something? 


1 The initial studies at South Hampton. The initial studies 

2 considered all the samples needed to make a determination 

3 relative to the negative declaration. The negative declaration 

4 was an either/or situation. If the stuff was a Class I waste, 

5 then it had to go to the Class I landfill so there's no 

6 environmental — and if it's nonhazardous, then it goes to a 

7 managed waste site. 

8 The removal action negative declaration was prepared by 

9 one of our top people in the Department and with cooperation from 

10 Jody Sparks, who was a consultant with the City of Benicia. So, 

11 I'm a little confused about that argument. It don't think it's 

12 correct. 

13 The Indian trial I.D. number, that one I can't completely 

14 answer. That's the one. 

15 But as I understand it, any permit on tribal land would be 

16 under a joint federal-tribal agreement, joint regs., et cetera. 

17 My staff knows — my head of permitting knows of no such 

18 permit. 

19 However, an I.D. number might be granted for a generator, 
2 someone who produces and has to take the stuff somewhere. 

21 But I don't have a complete answer on that one issue. 

2 2 CHAIRMAN LOCKYER: Are there guest ions additionally from 

2 3 Members? 

2 4 I'd recommend that, perhaps, you review the transcript to 

2 5 see if there are cases where someone felt that they were unable 

2 6 to get information, or there 'd been some inadeguate follow-up on 

2 7 reguests for meetings, or whatever. Perhaps just go through the 

28 document to see if there's ways to close those. 


MR. HUFF: I think that's a great idea. I'd be glad to do 

CHAIRMAN LOCKYER: Is there any plan that we should learn 
of that kind of expedites the whole process with the Department, 
whether it's cleanup or permitting? 

There just seems to be a lot of lawsuits, delay, mountains 
of paperwork. You know, it's just hard for anyone to understand 
even what goes on there. 

What's your general view? 

MR. HUFF: I think increasingly — well, there have been 
some legislative changes, first of all. Tiered permitting, which 
is just about implemented now, and that brought a lot more 
facilities actually into the regulatory net but at a much lower 

And the SB 1082, which we are now implementing, has 
created consolidated unified program agencies, we call them 
CUPAs, and they will be handling a lot of the lower tiers, and a 
lot of — at the local level. And that consolidates not just 
toxics programs, but programs from a number of other boards and 
departments, Water Board and others, and so that will be a more 
efficient process under the CUPAs, so there's one. 

On the cleanup side, the Department — and again, I think 
we're a leader here in something called "brown fields". Brown 
fields are largely urban areas that have some contamination. 
They may be stabilized; they may be that lot downtown that has a 
fence around it, okay. 

What we're working on and what we're implementing are 
cleanups of those areas wherein the prospective purchaser is held 






























harmless, so that it's an inducement for people to come in and 
develop the downtown, the brown field, rather than to go out to 
the suburbs and put the plant out there on the green field. 

We've moved quite a bit into the brown fields. We have 
brown fields in Oakland. We're working with the City of Oakland 
on creating a cleanup standard that's geographic in nature so 
that we can proceed with brown fields there. 

We have voluntary cleanups, which also have been very, 
very popular and positive. We have a couple of voluntary 
cleanups, one in Emeryville, wherein we're working cooperatively 
with the City to clean up, in a nonadversarial setting, property 
so it can be developed and used productively. 

So, we're doing those things, and I think that's the 
future, is the sort of voluntary cooperative arrangements, and 
try to avoid some of the chase-down the people and hit them over 
the head until they agree to clean it up situation. 

Of course, we're always going to have those. We have a 
large number of sites that are contaminated, and we're searching 
for responsible parties. 

But there are a lot of other instances where we can really 
get to business much more quickly when we have a fully developed 
brown fields program, and a voluntary cleanup program where we 
can get property handled quickly. 

I think that one other aspect of the future is CIRCLA. 
Congress is in the business, has been for a year and maybe 
they'll finally complete it, of reauthorizing the Superfund. 
When they do that, it's going to dramatically change Superfund, 
and I'm not sure how it's going to change Superfund yet, but I'll 


tell you, I bet that the state has more responsibility. I mean, 
the words that Congress are debating are authorization or 
delegation, both of which means that the states will have more 
responsibilities with regard to sites. 

So, the Super fund program, I think, will change. I think 
that it probably shifts, decentralizes, some of the work from US 
EPA to the states. 

At the same time, you see, we're shifting some of our 
lower level stuff via the CUPAs to local governments. I see that 
as a general trend in the programs. 

And then, like I said, on the cleanup side, the voluntary 
cleanups and the brown fields, we have one going on in Ontario. 
There's going to be a race track out at the Kaiser Steel Mill. 
That is the result of the Department of Toxics Substances Control 
working with Kaiser Steel to — 

SENATOR AYALA: The new race track? 

MR. HUFF: New race track at Fontana. 

That's the result of the Department working with Kaiser 
Steel to come to an agreement on the cleanup of one of the 
portions of that 1100 acres there. 

It's not going to be the whole thing. The race track 
doesn't need 1100 acres. But it will be, I think, a two-mile 
tri-oval. And they're going to run a race there, Pensky, in '97. 

So, those are the sorts of things that I think are going 
to be the things that the Department does increasingly in the 

CHAIRMAN LOCKYER: Are there other guest ions from Members 
of the panel? 


1 If there aren't any, it's probably time to ask what's your 

2 pleasure with respect to the — 

3 SENATOR BEVERLY: Move we recommend confirmation. 

4 CHAIRMAN LOCKYER: We have a motion to that effect. 

5 Is there any discussion or comment? Call the roll. 

6 SECRETARY WEBB: Senator Ayala. 


8 SECRETARY WEBB: Ayala Aye. Senator Lewis. 


10 SECRETARY WEBB: Lewis Aye. Senator Petris. 


12 SECRETARY WEBB: Petris Aye. Senator Beverly. 


14 SECRETARY WEBB: Senator Lockyer . 


16 SECRETARY WEBB: Lockyer Aye. Five to zero. 

17 CHAIRMAN LOCKYER: I'm going to recommend, Mr. Huff, that 

18 we hold the matter on the Floor, since we have, I guess, two 

19 weeks or so, so that we'll have an opportunity to go through some 
2 of the specific complaints about negative declarations and 

21 Departmental responsiveness prior to bringing up the matter for a 

22 final vote. 

2 3 MR. HUFF: Certainly. I'd be glad to participate with you 

2 4 in that. 

2 5 May I inguire as to, perhaps, when the transcript might be 

26 available? 

2 7 CHAIRMAN LOCKYER: Pretty soon. Soon. We taped that 

2 8 where we've, perhaps, not had our reporter here. 


I'd also like to thank those who had concerns and 
expressed those. I think it's constructive for people to do 

You've noticed, I'm sure, that there is a presumption that 
runs in favor of gubernatorial appointees, and particularly one 
that we've worked with for many, many years and found to be 
competent and fair. 

But you have some complaints that need to be looked into 
further, and I hope that we can assist in doing that in a 
constructive way. 

Thank you, Mr. Huff. 

MR. HUFF: Thank you, Mr. Chairman. 

SENATOR BEVERLY: Would you lift the call on the other 

CHAIRMAN LOCKYER: Yes. We have Mr. Frazee on call. Call 
the absentees. 

SECRETARY WEBB: Senator Beverly. 


SECRETARY WEBB: Beverly Aye. Senator Lockyer. 


SECRETARY WEBB: Lockyer Aye. Five to zero. 
[Thereupon the Committee acted 
on legislative items.] 


Let me ask Members if any of you in reviewing your 
materials have found that there are reasons to ask for testimony 
of Mr. Nagle, or are you willing to either confirm or would you 
wish to postpone? 


1 SENATOR BEVERLY: There's no opposition. 

2 CHAIRMAN LOCKYER: No, there's no opposition recorded. 

3 Those of us who worked with him in his EDD life have found 

4 him to be responsive and competent. 

5 There are a number of issues in our material that really 

6 are questions that would be fairer to put to the Governor rather 

7 than a deputy who has to kind of say what's predictable if you' 

8 ask those questions, you know, in defense of the welfare 

9 proposals and other such matters. 

10 But I'll defer to the Committee, if you're ready — 

11 SENATOR LEWIS: Move confirmation. 

12 CHAIRMAN LOCKYER: — if you're ready to vote on that this 

13 evening. 

14 SENATOR BEVERLY: Among his supporters is Senator Patrick 

15 Johnston and Jack Henning. 

16 CHAIRMAN LOCKYER: Yes, I noticed there was a range of 

17 support of various sorts. 

18 Call the roll. 

19 SECRETARY WEBB: Senator Ayala. 

21 SECRETARY WEBB: Ayala Aye. Senator Lewis. 


2 3 SECRETARY WEBB: Lewis Aye. Senator Petris. 


2 5 SECRETARY WEBB: Petris Aye. Senator Beverly. 


2 7 SECRETARY WEBB: Senator Lockyer. 



SECRETARY WEBB: Lockyer Aye. Five to zero. 
CHAIRMAN LOCKYER: Good luck, and sorry you had to wait, 
but now at least you know what you avoided. 
MR. NAGLE: I appreciate that. 

[Thereupon this portion of the 
Senate Rules Committee hearing 
was terminated at approximately 
7:25 P.M. ] 

— 00O00 — 



I, EVELYN J. MIZAK, a Shorthand Reporter of the 
State of California, do hereby certify: 

That I am a disinterested person herein; that 
the foregoing transcript of the Senate Rules Committee hearing 
was reported verbatim in shorthand by me, Evelyn J. Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel or 
attorney for any of the parties to said hearing, nor in any way 
interested in the outcome of said hearing. 

IN WITNESS WHEREOF, I have hereunto set my hand 

this ,-— ^ y day of January, 1996. 


^EVELYir J. 
Shorthand Reporter 


Additional copies of this publication may be purchased for $7.50 per copy 
(includes shipping and handling) plus current California sales tax. 

Senate Publications 

1020 N Street, Room B-53 

Sacramento, CA 95814 


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Please include Stock Number 289-R when ordering. 

L 5oo 








ROOM 113 


1:55 P.M. 

FEB 2 6 1996 

Sir- ?R&^ .wrfW 






ROOM 113 


1:55 P.M. 

Reported by 

Evelyn J. Mizak 
Shorthand Reporter 










GREG SCHMIDT, Executive Officer 

PAT WEBB, Committee Secretary 

RICK ROLLENS, Consultant on Bill Referrals 

NANCY MICHEL, Consultant on Governor's Appointments 



Fair Employment and Housing Commission 


California Transportation Commission 


State Air Resources Board 



California Renewable Fuels Industry 

State Air Resources Board 


City Councilman 

City of Huntington Beach 


Garden Grove Unified School District 

ADRIANNE MORRISON, Executive Director 
Amigos de Bolsa Chica 



Proceedings 1 

Governor's Appointees: 


Fair Employment and Housing Commission 1 

Background and Experience 1 

Questions by CHAIRMAN LOCKYER re: 

Lessons Learned 1 

Dismissal Rate 2 

Appellate Role 3 

Affirmative Action Debate 3 

Questions by SENATOR AYALA re: 

Gender Discrepancy in Wages 4 

Questions by SENATOR LEWIS re: 

Pay Gap Lessening between Men and Women 6 

Motion to Confirm 7 

Committee Action 7 


California Transportation Commission 7 

Introduction by SENATOR QUENTIN KOPP 7 

Questions by CHAIRMAN LOCKYER re: 

Observations about CTC 9 

Independence of Commission 11 

Geographic Response to Funding 11 

Questions by SENATOR AYALA re: 

Problem with Counties Completing 

Major Highway Projects 12 

Questions by CHAIRMAN LOCKYER re: 

Flexibility to Balance Final Product 14 


Questions by SENATOR PETRIS re: 

Hoover Commission's Finding of Bias 

regarding Multimodal Transportation 15 

Lack of Long-range State Plan 16 

Railroad Subsidies from Federal 

Government 17 

Motion to Confirm 20 

Committee Action 21 


State Air Resources Board 21 

Introduction by SENATOR STEVE PEACE 21 

Background and Experience 24 

Questions by SENATOR AYALA re: 

Programs to Clean Air Which Have Been 

Adopted Since 1990 26 

Pesticide Pollution in California 27 

Questions by SENATOR PETRIS re: 

Independence of Board 27 

Situations of Voting against 

Governor ' s Position 28 

Electric Cars 29 

Successful Operation of Electrically 

Powered Delivery Trucks 60 Years Ago 31 

Board's Rescission of Goal for 

Nonpolluting Vehicles 32 

Work in Other Countries on ZEVs 33 

Major Car Companies Working Alone or 

as Consortium 34 

Questions by SENATOR LEWIS re: 

Type of Electric Vehicle Driven by 

Nominee 35 

Price to Consumers 35 

Initial Target 36 

Necessity of Car Manufactures to Drive up 

Cost of Other Cars in Order to Sell ZEVs 38 

Questions by CHAIRMAN LOCKYER re: 

Hardest Issue on Board 39 

Possible Strategies to Meet 

Clean Air Goals 40 

Witness with Concerns: 

MARK BAUTE, Attorney 

California Renewable Fuels Industry 4 

Questions by SENATOR AYALA re: 

Statement of Facts and Not 

Opposition to Appointment 45 

Lack of Board's Independence 45 

Balanced Support for Nominee 46 

Questions to MR. ROBERTS by SENATOR LEWIS re: 

Prior Knowledge of MR. BAUTE' s Position 46 

Ability of Board Members to Shape 

Meeting Agendas 47 

Questions by SENATOR PETRIS re: 

Former EPA Secretary Strock's 

Favoring of Oil Companies 48 

Questions to MR. ROBERTS by SENATOR PETRIS re: 

Comments on Favoring Oil Companies 49 

Involvement in Pesticide Regulations 

to Clean Up Air 51 

Motion to Confirm 51 

Committee Action 52 


State Air Resources Board 52 

Background and Experience 52 

Statement by SENATOR LEWIS in Support 55 


Witnesses in Support: 


City Councilman 

City of Huntington Beach 56 


Garden Grove Unified School District 56 

ADRIANNE MORRISON, Executive Director 

Amigos de Bolsa Chica 57 

Questions by SENATOR PETRIS re: 

Clarification of Statements about 

Job Losses in Southern California 58 

Need for Verification of Reasons 

Companies Leave California 59 

Questions by SENATOR AYALA re: 

Status of Zero Emission Vehicle Program 63 

Questions by SENATOR PETRIS re: 

Advocating Looser Regulations 65 

Motion to Confirm 65 

Committee Action . . . ". 66 

Termination of Proceedings 66 

Certificate of Reporter 67 

--00O00 — 

CHAIRMAN LOCKYER: Gubernatorial appointees. Our first 
one is Michael Johnson, Fair Employment and Housing Commission. 

Good afternoon. 

MR. JOHNSON: Good afternoon. I'm Mike Johnson. 

CHAIRMAN LOCKYER: Would you have any comments you'd like 
to open with, sir? 

MR. JOHNSON: Only if the Committee is interested in 
some. That's a dangerous invitation to make to a lawyer. 


MR. JOHNSON: I obviously believe I'm well qualified. I 
have served one term on the Fair Employment and Housing Commissior 
before . 

CHAIRMAN LOCKYER: Was it a full term? 

MR. JOHNSON: Yes, it was. I'm state chair of that 
section. I practiced in that area for more than twenty years in 
the area of labor employment law and civil rights. I take a very 
active interest in this area, and I would be very pleased to serve 

CHAIRMAN LOCKYER: What have you learned from spending 
five years doing this? 

MR. JOHNSON: My prior term? 


MR. JOHNSON: I believe that the Fair Employment and 
Housing Commission serves a valuable function in the state, but it 
is an increasingly weak one which I believe was a disappointment 

CHAIRMAN LOCKYER: That's because of — 

MR. JOHNSON: I believe it is in part the structure of 
the administrative agencies. At the time that I served before was 
a period in which the Supreme Court decisions in Dynamed and 
Peralta took away many of the powers that the Commission had. 

I think that the effect of that has been to drive those 
who have complaints into the court system and away from the 
administrative system. And I personally believe that is a bad 
result . 

I believe the administrataive system provides a more 
prompt, a less expensive remedy for those who have a complaint. ] 
think it's to the value of those whose rights have been deprived 
and to those who are on the other side who are employers, because 
it is a more efficient way of resolving disputes than the court 

I know that there have been changes in the legislation 
since I left the Commission" in 1991 that has remedied some of 
those things, but I believe it has not yet come back to the point 
that it was in 1987, when I first began. 

CHAIRMAN LOCKYER: Are there other questions from 
Members . 

I note in our file it indicates that the dismissal rate 
is about 43 percent. Have you had an opportunity to look at the 
bundle that gets attention versus dismissals to see what the 
dismissed batch looks like? 

MR. JOHNSON: Only on a statistical level. One of the 
things that I was alluding to earlier, the -- unlike most 
administrative agencies, like the National Labor Relations Board, 
the Equal Employment Opportunity Commission, or the Agricultural 

Relations Board in California, the Fair Employment and Housing 
Commission really has no direct oversight over the Department of 
Fair Employment and Housing. They're independent agencies. 

The Commission that I have been appointed to is basically 
a decision making commission, and one which is a public forum for 
things such as hate violence and other civil rights issues. 

We really don't have the ability to tell the Department 
what to do with the complaints that it receives. We receive 
statistical information which I think is interesting, but -- 

CHAIRMAN LOCKYER: You don't have any appellate role at 

MR. JOHNSON: Filing amicus briefs, yes. 

CHAIRMAN LOCKYER: But not on individual cases. 

MR. JOHNSON: Yes, we decide individuals cases, and 
anyone who's dissatisfied with that result can challenge it by 
Writ of Mandate, and then the Commission appears usually through 
the Attorney General to argue the case. 

CHAIRMAN LOCKYER: Has the affirmative action debate beer 
played out before your forum or not? 

MR. JOHNSON: I've been on the Commission since February, 
that's when I was appointed, and I've been serving since then. 

We have begun a public forum on the issue of affirmative 
action. We began with a presentation by the representative of th€: 
black leaders business leaders group and then received some 
further input from the other side against affirmative action from 
an academic group. 

We have plans to incorporate that into our hearings to 
really listen, to provide those who have something positive on 

either side of the issue to say in a public forum. But we have 
no control over affirmative action in the sense that we have any 
direction over the government contract programs, and certainly 
college admissions and that sort of thing. It's just more of a 
discussion . 

CHAIRMAN LOCKYER: You've done informational 

MR. JOHNSON: Correct. 



Mr. Johnson, as a general rule, are men and women gettinc 
egual pay for equal work in California today, or is that a 
significant problem today in California? 

MR. JOHNSON: Well, that is the law. That is certainly 
what the law requires. 

SENATOR AYALA: I "know what the law is, but I'm asking 
you, is it a problem? 

MR. JOHNSON: The statistics show that women are paid 
less than men in the aggregate. 

Yes, I certainly do not agree with that result. 

SENATOR AYALA: Is your Commission able to handle that 
kind of a problem? Do you have the responsibility of looking at 
those issues? 

MR. JOHNSON: Our Commission decides individual 
complaints that the Department of Fair Employment an Housing, in 
its discretion, decides to prosecute and then take to a hearing 
before our Commission. We have no independent ability under the 
law to really make a direct change on that. 

We certainly have the ability to conduct a public forum 
if we choose to do so. The resources that are given to that 
Commission allow us to meet as a Commission once every other 
month, so we have to be fairly selective about which issues we 
pursue. That has not been one of them. 

SENATOR AYALA: You're telling us that that issue still 
remains a significant problem in California, where women are paid 
less than men for same kind of work? 

MR. JOHNSON: I believe that statistically that is the 
case, and that is a problem, and it has not been one that our 
Commission has been able -- 

SENATOR AYALA: Are you commissioned to do something 
about that? 

MR. JOHNSON: We could have a public hearing to discuss 

SENATOR AYALA: If you do that, can you then allow us to 
introduce legislation to try to correct it? Would that be a 

MR. JOHNSON: Yes. I can give you an example of 
something that was done when I was a Commissioner that I took a 
very active interest in. 

We conducted hearings on the effect of the Immigration 
Reform and Control Act as it pertained to California. We issued i. 
report, a very extensive report, in 1989 that discussed that. Anc 
that provided a springboard for discussion in the Legislature and 
in the federal level as to the real impact of that law in 

We could do the same on that issue that you've identifiec. 

or any other, 

SENATOR AYALA: You could, but will you? 

MR. JOHNSON: If asked. I'm one of seven. 

SENATOR AYALA: I'd like to hear more about that at some 
other time, but for now I'll just pass. 

CHAIRMAN LOCKYER: Other questions? Senator Lewis. 

SENATOR LEWIS: Just following up on Senator Ayala's 
question, isn't it also true that the pay gap is lessening? 

MR. JOHNSON: I believe it is. It's an issue that I've 
taken some personal interest in and have studied. I think it is 
-- this may reflect my -- the conclusions -- I think it's a much 
more complex issue than is often reflected. 

I personally believe that legislative measures, such as 
the Family and Medical Leave Act, which allows women to enter and 
leave the workplace without being penalized, has done a great deal 
to close that gap, but it still exists. There is still a 
differential. I think the reasons for that are often more 
complex . 

SENATOR LEWIS: One of the reasons might be longevity in 
the workplace? 

MR. JOHNSON: Longevity in the workplace, entering and 
leaving the workplace, being penalized when one enters and leaves 
the workplace are many of the economic reasons that I have seen. 

And I believe that, as I said, measures such as the 
Family and Medical Leave Act, and the California counterpart of 
that, have been effective to address some of the root causes. 

CHAIRMAN LOCKYER: Is there someone present that would 
wish to make any comment on the appointment? 

What's the pleasure of the Committee? 

SENATOR BEVERLY: Move we recommend confirmation. 

CHAIRMAN LOCKYER: We have a motion by Senator Beverly. 
If you will call the roll on that recommendation. 

SECRETARY WEBB: Senator Ayala. 


SECRETARY WEBB: Ayala aye. Senator Lewis. 


SECRETARY WEBB: Lewis aye. Senator Petris. 


SECRETARY WEBB: Petris aye. Senator Beverly. 


SECRETARY WEBB: Beverly aye. Senator Lockyer. 


SECRETARY WEBB: Lockyer aye. 

CHAIRMAN LOCKYER: Thank you, Mr. Johnson. Good luck to 

MR. JOHNSON: Thank you. 

CHAIRMAN LOCKYER: We also have Mr. Jordan, member of the 
Transportation Commission. 

This isn't Mr. Jordan. 

SENATOR KOPP: Mr. Chairman, Members, if I may just take 
a moment to present Mr. Jordan to the Committee. I do so because 
of my respect for him. I do so also because I've known him the 
better part of the eleven months or so that he's served on the 

And I come here to commend him for confirmation 
strongly. He has a considerable background in transportation, 


more particularly in rail transportation. Let me tell you, he has 
made me very happy that he is a member of the Commission. He has 
been designated to the High Speed Rail Commission, where he's 
particularly well suited by qualification, and that qualification 
includes his tremendous experience in administering and managing 
rail transit. 

And I'm sure that you've reviewed his biography and know 
the specific details of his career. But just let me tell you, as 
someone who on at least two or three occasions has been allowed tc 
join the Committee to cross examine nominees, I want you to know 
that this is an appearance in a different way, as I say, to 
commend him to you for confirmation. 

If I might be excused, I'll return to Revenue and 

CHAIRMAN LOCKYER: Have a good time. Thank you, Senator 
Kopp . 

SENATOR KOPP: You're welcome. 

CHAIRMAN LOCKYER: Did you want to start with any openinc 
comments, sir? 

MR. JORDAN: Mr. Chairman, I think anything I would say 
now would probably be after the close was made, and I ought to 
keep my mouth shut . 

I would like to beg your indulgence and that of the 
Members of the Committee to introduce my wife who's sitting about 
four rows back in a black suit. She might divert your attention 
from me, and you can pay more attention to her. 

Otherwise, I welcome your questions, if I may. 

CHAIRMAN LOCKYER: Are there questions from Members. 

What observations do you have about CTC, Caltrans, and 
these various structures and programs that you've had a chance to 
experience first hand in the last year? 

MR. JORDAN: There are at least a dozen questions, I 
think, that I can infer from that larger question. 

CHAIRMAN LOCKYER: I'm just trying to get you started. 

MR. JORDAN: Mr. Chairman, I would make the following 

The CTC can play a vital role as it was constructed 
legislatively as an independent organization, body, panel. 

I think that the pain and agony that the state has been 
facing in funding, the problems of the transportation 
infrastructure, force us to concentrate too often at the margin, 
so that we don't have an opportunity to address some of the largei 
policy issues and provide, hopefully, the advice and consent to 
the administration and the Legislature that was implied by the 

Secondly, given the nature of funding decisions, the vast 
majority of our time meets the 80-20 rule; we spend eighty percent 
of our time on twenty percent of the value, and twenty percent of 
our time on the eighty percent as a result. Hopefully, some day 
that might be capable of being reorganized. Senator Kopp, who was 
here a few moments ago, has in fact, as you know, proposed a bill 
that would modify the CTC ' s deliberations. 

Secondly, I share the concern of both the Legislature anc 
the Governor as to the size and function of Caltrans. Simply 
downsizing, however, in my experience -- and I did have rather 
substantial experience in running an over loaded organization — 


is not really the first issue. What you have to do is decide very 
clearly what you want people to do, what their goals are, make it 
clear to them, organize to do that, and then decide how to 

I think you saw that more recently, and this is an 
example, in the AT&T decision. They reorganized the company, 
decided how to run it, break it into three parts, then decided hov 
many people should leave. Painful though it was, it probably 
represents a better opportunity for those that stay. 

But doing so at Caltrans, I would suggest, based on some 
of the evidence last year in which I have been serving, there is 
an entirely different function if you, quote, "contract out", end 
of quotes. Program management is not same as building highways. 
And the Department would have to be, I think, educated and 
trained, and hopefully we would use the valuable people and the 
experience they have to do precisely that in doing so. 

Beyond that, you know, my conclusions are simply those of 
somebody who's an observer rather than somebody in charge. As a 
result, I really haven't put my hands on the machine in the same 

I hope that fully answers, but if not, please. 


MR. JORDAN: As you can imagine, I have been far more 
interested in some of the problems of rail infrastructure. It's 
much easier to address questions that you know a little bit 
about. The advantage I've had in that has been the so-called shop 
program, the major maintenance. 

Highways have the same problems that railroad 


infrastructure has. Once they start to deteriorate, and you defer 
maintenance, they get worse not better. The Department and I havo 
had an ongoing dialogue. They have been supportive of further 
analysis, and in fact, the Commission agreed in terms of the STIP 
for '96 to increase the funding so that we can get in front of 
that problem more effectively and preserve the investment we 
have . 

Those kinds of things I find very worthwhile. 

CHAIRMAN LOCKYER: Does it feel like, the Commission, 
like a sufficiently independent and deliberative body? 

MR. JORDAN: I don't think there's any question about it£ 
independance, truly. It's a collection of good people who are 
interested in doing good things. Often the debate reaches a 
higher level of decibels than one might want because people get 
passionate about what they believe, and I think that suggests 
independance, frankly. 

CHAIRMAN LOCKYER: How much geographic response to 
funding and other decisions have you encountered? Is there a 
problem with members feeling like, well, I'm from some particular 
part of the state, so I have to fight for whatever limited dollars 
might go that direction? Or, are you satisfied with there being e 
more statewide perspective? 

MR. JORDAN: I think the latter rather than the former. 

Quite clearly, I live in Monterey County. The 
supervisors and TAMSY, the transportation agency, love to engage 
my interest in various matters. I suspect that all the 
Commissioners face that kind of desire. 

CHAIRMAN LOCKYER: I think that's correct. 


MR. JORDAN: But that's different. In my view, I think 
that's a perfectly natural communication channel. That doesn't 
change what you do. 

SENATOR AYALA: We discussed the little problem I have ir 
my district, which is State Highway 71, that tapers off 10 and 
diagonally goes across 60 in Pomona, and eventually enters 91 froir 
Riverside County to the beach areas. 

There's a project going on, an extremely important 
project, because there's been a lot of accidents there, where 
the Caltrans will be taking care of about 98 percent of the 
problem, some 15 miles in length, but the last three miles happen 
to be in another county, and they refuse to put in STIP. 

How can Caltrans spend all that money and only complete 
98 percent of a major project and allow some county to avoid 
completion the way it should be into that area that goes into 91. 

Is there anything that you as a Commission can do to — I 
think it's unacceptable to have the whole project, it's underway 
now, but the last three miles will be a bottleneck, because it's 
going to narrow in, going to be a traffic jam all the way to 
Pomona going south, and all the way to the beach trying to get 
into the thing because it'll be a bottleneck. 

Is there anything that Caltrans can do to avoid that? 

MR. JORDAN: Clearly, the process provides for counties 
to have their own set of priorities. The overriding issue of 
state value comes from Caltrans. 

I would hope in our hearings, and as you know, the 
Southern California hearing will be taking place next Tuesday, 
that we can address this kind of a question and make certain that 


Riverside County understands the problem and are prepared to 
address it through the medium of utilizing Caltrans, information, 
and technology. 

But clearly, in the absence of Riverside making it a 
priority item or Caltrans, the Commission is stuck with the 
priority list. That's not something I can individually — other 
than in a make certain -- 

SENATOR AYALA: Is there anything you can do about that 

MR. JORDAN: I think that the dialogue, the colloquy, is 
the most important thing. 

SENATOR AYALA: That hasn't worked so far, dialogue. 

MR. JORDAN: Maybe we haven't addressed it quite as well 
as we should yet. 

SENATOR AYALA: Maybe you folks can do a better job 
because we haven't done very well. 

MR. JORDAN: I'm glad you said you folks, not just me 
personally, but I'll take it on personally. 

SENATOR AYALA: Well, you as a part of the Commission. 

MR. JORDAN: I understand. 

SENATOR AYALA: It doesn't make sense, really, to — 

MR. JORDAN: As you look at it, I understand your 

SENATOR AYALA: Get involved with millions of dollars, 
only to have a bottleneck. 

Caltrans is willing to spend 20 million to widen it a 
little bit and put some shoulders for safety features. That's 
totally unacceptable for a project of that nature. 


MR. JORDAN: There are two or three major projects which 
I have been able to have on an individual basis with Caltrans; 
discussions on an individual basis. 

I think this is one we should look at more carefully, 
because it reminds me very much of that wonderful cartoon about 
railroad building. When they built it, it looked like this when 
they got finished. Do you remember, they didn't come together. 

You don't want to do it that way, I understand. 

SENATOR AYALA: I'd like to talk to you further about 
this thing because we're not going to resolve it now, but I think 
it's of major concern to the people in that general area. I think 
it's extremely important that we complete the job right, not at 9E 
percent of capacity. That's wrong to do it that way. 

CHAIRMAN LOCKYER: You're about to get lobbied by each of 
us for our favorite local projects. 

MR. JORDAN: My pencil is broken. 

CHAIRMAN LOCKYER: I guess the question I didn't quite 
follow your answer is, to what extent is there some flexibility tc 
rearrange all of the submissions that come from the various 
counties or regional agencies to reflect a more complete or 
balanced final product? Do you have that flexibility? 

MR. JORDAN: We have the opportunity to move projects up 
on the STIP, but I think the legislation as the Legislature has 
put it forward depends heavily on the sense of priorities and the 
commitment of the local areas. And it would be I think — 

CHAIRMAN LOCKYER: So, if it isn't even on the STIP, ther 
you're -- 

MR. JORDAN: It's very difficult to put it on, 


absolutely. But we do have an issue here that begs the question, 
and we've seen it in a couple of others, at least I have. I think 
it's a legitimate question we should raise and be sure we 
understand fully the nature of why Riverside doesn't want to do 
something. That's appropriate, I think. I hope you'd agree. 

CHAIRMAN LOCKYER: Yes, you'll be hearing it from me this 
week about 880, the Nimitz freeway in the East Bay, which Senator 
Petris and I are associated with. Well, down further is the 

MR. JORDAN: Would it help for you to know that I was 
born in Oakland? 

CHAIRMAN LOCKYER: It can't hurt. 

SENATOR PETRIS: I'd like to know why he left. 

CHAIRMAN LOCKYER: Any other questions from Members? 
Senator Petris. 

SENATOR PETRIS: The Hoover Commission has been examininc 
our transportation system over-all for sometime in California. 
Back in 1992, they issued one of their reports, and they say that 
we have a state concensus to develop a system that includes a 
variety of transportation modes in the state to have a unified 
combined thing. 

But it's been hindered by highway bias and Caltrans, and 
a lack of advocacy in the Governor's cabinet. That's what the 
Hoover Commission says. We have heard that before. 

Can you comment on that as a member of the Transportation 
Commission? Is that a bias that you've seen? Do you agree that 
that's the case? Whether you do or not, others do. 

What can we do about changing that? 


MR. JORDAN: Well, your last question, if I may, Senator, 
suggests that I agree with the presumption that the bias exists. 
Since we haven't established that yet, give me a movement to 
address it, if I may. 

I haven't seen a bias administratively. I think there's 
a significant amount of attention on the state rail plans. 

I think if there is a problem, it lies more in the nature 
of how it's been organized on a statewide basis, and the 
commitment of the citizens of this state who failed to pass two 
bonds issues so that there's a shortage of funds. 

SENATOR PETRIS: We don't have a long-range state plan? 

MR. JORDAN: No, we do not. There was a ten year plan 
put in place a few years ago, but it presumed the bond issues. 
Didn't happen. Now we've got to have a new one. 

I know that there's been good dialogue because I have 
participated in it, given my background. Mark Watts, who just 
went to the Legislature on the Assembly side, and I have had many 
discussions about precisely that, and I know he was very 
instrumental in trying to move something. 

But you are dealing with a bias that is long seated in a 
culture that's quite different. I mean, one of the things that we 
have found on this High Speed Rail Commission, where I've worked 
for last two years for the state, is the presumption that somehow 
European and Japanese railroads, passenger railroads, make money 
because that's the thing they normally do. 

But there's a culture difference in both of those 
countries and continents compared to the United States. We put 
our investment in highways, starting in the '50s. We didn't put 


it into railroads. Railroads were for profit, running freight 
trains and ran passenger on the side. 

In the early '40s, middle '40s, that's fine. But the 
introduction of the jet made a big difference. 

SENATOR PETRIS: Railroads have had a very handsome 
subsidy from the federal government since day one. 

MR. JORDAN: That I disagree with, you'll forgive me. 
As an old railroad man, I don't think that's correct. 

They got the land, the western roads, but that was the 
end of it. 

SENATOR PETRIS: How about the mail subsidies. 

MR. JORDAN: That was very modest, and there's some 
question as to whether or not that was really a subsidy, or we 
were embracing more costs than we were revenue. 

SENATOR PETRIS: Well, I'll have to examine the 
literature, because the only things I've read -- not because I 
selected them but they came to me -- go in the opposite direction 

MR. JORDAN: Let me commend to you the preliminary and 
final system plans that I organized and wrote, with three hundred 
other people, that reorganized the eight bankrupt railroads in the 
northeast . 

The issue of cross subsidation of the railroad industry 
was a profound issue, and at that point, the Congress of the 
United States concluded that it was wrong, and thereafter, 
passenger ought to stand on its own, and freight ought to stand 
on its own. 

There was tax benefits to the railroads through the '70s, 
but once deregulation occured, the end product of which was the 


elimination of the Interstate Commerce Commission in most recent 
legislation, you'll notice that railroads, private, freight, for 
profit railroads, have substantially improved their profitability 
and simultaneously have, in real terms, reduced the rates that 
shippers were paying. It's a remarkable story. 

And the productivity of the industry is well ahead of 
the rest of American industry. 

You're on one of my hot buttons, as you can see. This is 
something I get very worked up on. 

I don't disagree with the first part of your question 
though. It's very hard not to have a bias. 

The automobile is a comfortable, convenient way to get 
most places, so it's easy. And we built a highway system to make 
it work. And our cities are so far apart that passenger service 
is typically not as effective as airplanes. 

And we deregulated" air fares at the end of the 1970s, anc 
today we're the beneficiary of that. We can fly from here to 
Southern California for, what, $39 now; from San Jose to Portland 
for $50. Those are very modest fares. 

If you bought a ticket a few years ago from London to 
Paris, it was four or five times as much, and they had a regulatec 
market . 

SENATOR PETRIS: Yes, but look at the destination. 

MR. JORDAN: It's very difficult in the circumstances of 
reduced means, with a population whose culture is oriented to the 
car, to create a demand for passenger service. 

I think that one of the issues that the High Speed Rail 
Commission, and therefore, the CTC eventually, have to address is 


how to create that galvanizing action that makes people want to 
build a multimodal system so that they have options and we can 
make it work. 

SENATOR PETRIS: We don't have the answer to that yet. 

MR. JORDAN: I think we're a long ways away, but I think 
it's possible. And I believe the High Speed Rail -- and I'm off 
CTC now, so you'll forgive me — but as I have explained to a 
couple of your colleagues in the last 24 hours, the ridership 
figures that we have preliminarily looked at suggests that there 
is a significant market, and one which would pay for itself on an 
operating basis, to build a high speed system this state. 

What it doesn't suggest is that the infrastructure costs, 
which are in the multi-billion dollar range, would be paid for by 
the private sector. That's the question we've got to figure out 
more answers to. 

But clearly, times are changing. And we've got to, I 
think, look at other ways of solving problems than what we've done 
in the past. Congestion, et cetera, cost of a new airport. 
Denver cost $6-7 billion to build a new airport. 

We're running out of space in Los Angeles and San 
Francisco. What are the options. 

These are all significant questions that this 
Legislature, I'm sure, will face. 

SENATOR PETRIS: I think you're right. I was reading 
this morning about the pollution caused by the Sacramento 
Airport. I don't suppose they're the only ones. 

MR. JORDAN: I would think the characteristics are the 
same . 


SENATOR PETRIS: Significant problem. I guess whichever 
way we go, we run into problems. 

MR. JORDAN: And the benefits to get them cost a lot. I 
think the Alameda Corridor project from Southern California/ it's 
a freight project, not a people, although peripherally people wil] 
benefit enormously by clearing that bad transportation situation 
up -- will do enormous benefit for the economy of the state, 
enormous benefit for the freight railroads, enormous benefit for 
the trucks, and make it much easier to get around, and therefore 
reduce congestion, pollution. 

But it's got a price tag on it. It's nearly two billion; 
we're short several hundred million. It's not easy to accomplish 
these things. 

CHAIRMAN LOCKYER: You can almost say that about 
virtually every program. 

MR. JORDAN: I'm certain. 

CHAIRMAN LOCKYER: But that's a main one that's a very 
essential one for economic vitality of the region. 

Other questions from Members? Are you ready to move 



SENATOR LEWIS: Move confirmation. 

CHAIRMAN LOCKYER: We have motion to confirm. Call the 

SECRETARY WEBB: Senator Ayala. 


SECRETARY WEBB: Ayala Aye. Senator Lewis. 


SECRETARY WEBB: Lewis Aye. Senator Petris. 



SECRETARY WEBB: Petris Aye. Senator Beverly. 


SECRETARY WEBB: Beverly Aye. Senator Lockyer? 


SECRETARY WEBB: Lockyer Aye. Five to zero. 

MR. JORDAN: Thank you very much. 

CHAIRMAN LOCKYER: We have been very impressed, 
entertained and educated by your presentation. 

MR. JORDAN: I didn't come to entertain, but thank you. 

CHAIRMAN LOCKYER: I wish we'd have more opportunities 
like that. Good luck. 

MR. JORDAN: Thank you. 

CHAIRMAN LOCKYER: Let's see, Senator Peace, were you 
here for any particular -- 

SENATOR PEACE: Mr. Roberts. 

CHAIRMAN LOCKYER: Okay, we'll take him next, then, Ron 
Roberts, for State Air Resources Board. 

SENATOR PEACE: Thank you, Mr. Chairman, Members. 

I have the pleasure to add my suggestions along with the 
many others that I know are before you to approve of Ron Roberts's 
nomination for service on the Air Resources Board. 

I've had the opportunity to be both with and against Ron 
on occasion in San Diego through various iterations of issues and 
political campaigns and whatnot. At the risk of doing him harm b^ 
describing him in what is, I suppose, not a politically correct 
manner these days, he has carved out a well deserved reputation ir. 
San Diego as a San Diegan first and a politician second, for all 


of the generally pejorative notions that we all endure as a 
consequence of being politicans. 

Like myself, Ron was raised in San Diego, and his family 
is here in San Diego. He's one of those lost souls that found 
himself in the Republican Party through some sort of strange 
happenstance that many times is inconsistent with his good sense. 

CHAIRMAN LOCKYER: We'll keep hoping. 

SENATOR PEACE: He represents -- Ron and I also represent 
a common constituency. Our districts overlap in great measure, 
think in all of his work in his prior incarnation as a City 
Councilman, as well as recent addition to the San Diego Board of 
Supervisors, he has demonstrated a tendancy, a characteristic, 
predisposition to bring people together to resolve issues. 

He's never been associated in any way with any debate in 
the San Diego region as anything other than a healer, or someone 
that was honestly attempting to hear from all sides. 

He's very often found himself in the middle of highly 
controversial circumstances. But I, quite honestly, could not 
identify a single occasion in which he has even been accused, as 
far as I can recall, but certainly not with any sort of objective 
or rational justification, of having been an antagonist or 
protagonist for a particular group or cause. 

Even in circumstances in which, for example, a few years 
back, Ron and I had some very different viewpoints about where we 
ought to head on an issue that's real important to San Diego in 
terms of its airport -- you were just discussing airports -- its 
airport location. It was a public debate that I think was unusual 
in its civility, and I think ultimately productivity in terms of 


advancing the real underlying issues that are always underneath 
all the rhetoric. And I hope that San Diego, in part because of 
some of the discussions that occurred in that area, is in a 
position in the next couple of years to make some real decisions 
that will be important to us. And Ron in particular contributed 
immensely to that debate. 

So, from San Diego's perspective, as you know, we're kinc 
of a parochial place, and the first -- Ron, more than anything, 
meets our first criteria; he was born and raised in town, so we 
don't have to deal with any of these imports. 

CHAIRMAN LOCKYER: He went to school in Berkeley. 

SENATOR PEACE: He ' s a San Diegan, and that's important 
to us . 

We fought very hard to get this position on the Air 
Resources Board. As you know, there's some political, historical 
controversy associated with guaranteeing a position for San 
Diego. So, we always look very carefully in terms of not wanting 
to waste that political ammunition because we realize we spend a 
bullet in order to secure the position. So, we look very 
carefully each time someone is selected. 

Members of the City Councils throughout San Diego, fellov 
members of the Board of Supervisors, the State Legislators here ir 
the Capitol, I think all of us elected officials unanimously 
support his nomination. 

CHAIRMAN LOCKYER: Thank you, Senator. 

SENATOR PEACE: Thank you. 

CHAIRMAN LOCKYER: We appreciate your comments. 

Well, Mr. Roberts, do you want to begin, Supervisor, with 


any particular comments? 

MR. ROBERTS: I have a relatively short statement, if I 
could give that to you. 

I have to say that I was a little concerned when Steve 
started to refer to a heel. I'm glad he said healer. 

I think that's a more unique introduction than I've had 
at any time. 

Mr. Chairman and distinguished Members of the Rules 
committee, for almost one year I've had the privilege of 
representing San Diego County on the Air Resources Board. Now I'n 
before you in what feels like a job interview. 

Well, I want you to know that I like this job, that I've 
worked hard, and that I've learned a lot about air quality issues. 
In fact, over the past ten months, I've spent a considerable 
portion of almost forty days on ARB related activities. 

In addition to regular meetings and public work shops, I 
visited refineries, ARB facilities, small businesses, and large 
manufacturers. I've driven electric cars and those powered by 
natural gas. 

While I've come to understand many of the concepts and 
standards, occasionally I'm baffled by a new abbreviation. 
Recently, my feelings of confidence were shaken when I realized 
that I didn't know the meaning of a simple familiar term, NMOG. 
It still happens, but I am learning this obscure language. 

Beyond the learning, I've tried to contribute to the 
Board's efforts towards cleaning our air. Like most people from 
San Diego, I'm very proud of our county. On a clear day, the 
mountains to the east and the Coronado Islands to the southwest 


1 provide a stunningly beautiful view, and my goal is to increase 

2 the number of days we enjoy this view by reducing the number of 

3 poor air quality days. 

4 Since we're heavily impacted by transported air from the 

5 Los Angeles area, this is not just a San Diego problem. We need 

6 statewide solutions. 

7 As an architect, as you noted, Mr. Chairman, educated at 

8 the University of California at Berkeley, I've worked to improve 

9 i the quality of our built and our natural environments. As a 

10 member of MTDB, our local public transportation board, and APCD, 

11 our County air district board, I've been directly involved in air 

12 quality issues. 

13 Last year, I was very successful in pushing for the 

14 acquisition of 30 new CNG buses. As a City Councilman and now as 

15 Chairman of the Board of Supervisors, representing the most 

16 urbanized area of our county, I've also become acutely aware of 

17 the negative impacts on the health of our residents, especially 

18 our seniors and our children, that result from poor air quality. 

19 By understanding the problems and the options, we can 

20 make a difference. 

21 I want to help to clean up the air in San Diego and in 

22 California. And I would very much appreciate your support. 

23 CHAIRMAN LOCKYER: Questions from Members? Senator 

24 Ayala. 

25 SENATOR AYALA: Yes, I have a question. 

26 Mr. Roberts, I believe in 1990, the ARB adopted the low 

27 emission vehicle program for the state of California. That was a 

28 major project you undertook. 


What has happened since in terms of the ARB? What have 
they been involved with since that was adopted to clean up the air 
in terms of the motor vehicles? 

MR. ROBERTS: Let me, if I can, there's quite a history 
from 1990 until now, much of it I am learning about, having servec 
now for just over ten months on the Board. 

What I'm amazed at, I think that each of us has probably 
followed the discussion that's going on on the EVs, or ZEVs, the 
zero emission vehicles, the electric cars, if you will. 

But there are a number of other major things that are 
going on. This year we will have reformulated gasoline that will 
be the most significant change of all of the programs. It will 
remove over a billion pounds of pollutants from the air in 
California on an annual basis. That is far more significant than 
any of the other programs that are being discussed and debated. 

Also overshadowed," there was a recent announcement by 
Ford Motor that they have received certification on the Ford 
Escort as an LEV, and with the significant sales of that vehicle 
in the State of California, that represents an enormous 
improvement in air quality. 

So, there are a number of programs that are coming 
forward that we have had some introduction to this past year. 

SENATOR AYALA: You've embarked on a number of programs 
since that first -- 

MR. ROBERTS: Since the steps that you mentioned in 
1990. And these are the things that we've been working on this 
past year. 

SENATOR AYALA: Do you believe that pesticides are a 


significant pollution problem in California? 

MR. ROBERTS: We — I think there's probably some overlap 
in looking at pesticides. I know that our Chairman, John Dunlap, 
has expressed some interest, and I think is, in fact, currently 
working with one of the other state boards to look into that 

There are some concerns . I think there are some 
legitimate concerns, but I think we've got some work to do before 
we can make any final decisions. 

SENATOR AYALA: Do you think the Board will be 
promulgating new regulations to deal with the pesticides 

MR. ROBERTS: I think that we're going to have to see the 
results of some of the studies that are under way. 

SENATOR AYALA: There are studies going on at the moment? 

MR. ROBERTS: There are some current studies, I believe, 
regarding some of the pesticides; that's correct. 

SENATOR AYALA: Thank you. 

CHAIRMAN LOCKYER: Senator Petris. 

SENATOR PETRIS: Yes, I have several areas. I'll try to 
be brief in each one. 

One is the status of the Board. Some contend the Board 
is an independent agency, and it should act on its own after 
reviewing whatever the problem is before it. 

Others say that the Board doesn't have any independence 
because they serve at pleasure of the Governor. The moment the 
Governor disagrees with a vote, he can toss you out. 

Which is accurate from your experience in the last ten 



MR. ROBERTS: My experience — first of all, there's 
never been any kind of a threat or a communication of being thrown 
out . 

I've put a lot of time into some of these issues, 
especially the controversial issues. I feel very comfortable that 
I'm going to be able to vote as I see the issue. And there are 
public -- there is public correspondence from the Governor on some 
of these. That's the only communication I've had on those issues 
with that office. 

SENATOR PETRIS: How about when you were first 
appointed? How did they first contact you? 

MR. ROBERTS: Senator, I may be somewhat unique in that 
the Governor, as Mayor and as Senator, being from San Diego, we 
have, perhaps, a longer history. 

And also in San Diego, the situation is that the Board of 
Supervisors is the air quality board for the County, and it's a 
member of that board that would be qualified for this 
appointment . 

There was never any interview. There was never any 
questions . 

I've known the Governor for some time, and I was asked if 
I would be interested in this, and I -- after looking into it, I 
agreed that I would be very interested. 

SENATOR PETRIS: Have there been any situations where 
you've disagreed with the Governor in your votes on the Board? 

MR. ROBERTS: There is — it is infrequent to even know 
what the Governor's position is on an issue that's before the 



I think most significant one certainly is the ZEVs, the 
zero emission vehicles, the electric cars, where they've been -- 
through correspondence and public correspondence, have been quite 
clear of what their interests are. 

We haven't voted on that issue yet. I've had some 
concerns about that . 

SENATOR PETRIS: You voted once. The question is, are 
you going to throw it out; isn't it. 

MR. ROBERTS: We haven't — Senator, we have not yet 
taken any votes on that issue. We've had some workshops. We've 
had two special meetings right before Christmas, and I think there 
is a concensus evolving that we need to make some modifications. 

And I will tell you, I personally -- I've driven one of 
the General Motors electric cars for two weeks, and I have some 
very strong concerns about the range of that car. I like the car; 
I want electric cars. We want to have a successful program. 

SENATOR PETRIS: You need an awful long cord, I know 

MR. ROBERTS: I live very close to my office, within two 
miles of my office, and I found that the suggestion that you coulc 
get 70 miles around the city and 90 miles on the freeway was very 
unrealistic . 

I was able to get just over 40 miles around the city, anc 
if I stayed only on the freeway could I get 70 miles. 

That gives me great deal of concern. And you're right, 
You would need a long cord. 

But I think that what we really want to do is see that we 


ultimately have a successful program. I think the potential, with 
the new batteries that are out there for -- to have something that 
will lead to cleaner air in this state, I think there is a high 
degree of likelihood that we can succeed if we go about this in 
the right way. 

SENATOR PETRIS: Is there only one electric vehicle 
available, I mean one company? 

MR. ROBERTS: No. Ford is producing. They have a 
prototype. It's in one of their small trucks. And Chrysler has 
-- is experimenting with a van which I would suspect have very 
limited range because of the size. 

I was at auto show in Los Angeles a week or so ago, and 
saw that Toyota has a -- it's almost like -- it looks like a 
four-wheel drive, maybe a Jeep type configuration. 

You're seeing a lot of experimentation going on right 
now. In fact, there was one, I think it was Nisson, that has a 
vehicle with lithium ion batteries in it that's being tested that 
could produce a significant breakthrough. 

SENATOR PETRIS: I'm puzzled by this. I've brought it up 
before in prior meetings. 

When I grew up in west Oakland, there was a group, there 
was a company called the Railway Express Agency. I guess they're 
still in existence. They had whole fleet of electric trucks, and 
they went all day long, delivering parcels all over the place. 

I remember the first time I saw one, I heard this whining 
noise coming down the street. I turned and looked. It was a 
truck. And it was later explained to me that that runs on 


Now, that was at least 60 years ago. Are you telling me 
we've gone down hill instead of up hill in trying to develop 
electric vehicles, in view of the fact that those were 
successfully operating for a number of years way back then? 

MR. ROBERTS: No, I didn't mean to suggest that. 

What I would suggest to you, we probably haven't 
accomplished a whole lot in those intervening 60 years. 


MR. ROBERTS: I'm talking about the automotive industry. 
I'm talking about the people in this state. 

Over the last few years, you've seen a major effort 
launched, I think largely because of the work of the Air Resources 
Board this this state. And I think that that's going to pay off 
in major dividends. 

But the lead acid battery that I suspect was probably in 
those trucks and that powers the General Motors EV-1 that they've 
chosen to call their car, they're very limited in what they can 
do. They're very heavy, and the range is extremely limited. And 
the life cycle, the life span of the batteries is very limited. 

Probably for a trucking operation, or maybe a delivery 
service, maybe, that had a limited number of miles that it had to 
achieve each day, it could be a good choice and probably would 
have made sense. 

SENATOR PETRIS: Let's see, in 1966, I had occasion to gc 
to England to speak on British TV about air pollution in 
California and the electric alternative. 

Well, they had huge cranes operating on electric trucks. 
I saw milk delivery being made door-to-door with the bottles, 


electric trucks. 

I inquired about it, and I was given a kind of a poster 
that had silhouettes of every type of electric vehicle that was in 
use in England in the mid '60s. It included large trucks. It 
included trucks with a hurge crane on them. It included the small. 
delivery truck and the passenger vehicle. 

Yet, when I came back and talked about it, they just 
shook their heads and said, "No, it can't be done." 

Well, it was done. They were doing it at that time. Anc 
they were motivated by the horrible smog problem in London that 
industry created, not the automobile, mostly industry. They 
thought that to the extent that the automobile contributed, they 
would cut down on that part of it. 

Then I remember my childhood and I say there's something 
wrong here. It doens ' t match up. It seems that we've done it at 
certain times, and other people have done it, and now a lot of 
people are saying can't be done. 

I understand your Board set a goal for the end of the 
century to switch to nonpolluting vehicles, and that was rescindec. 
because of the tremendous opposition. 

Can you comment on what caused the change in policy of 
the Board? 

MR. ROBERTS: Well, first of all, it hasn't been 

What the Board is considering is how can we keep on 
track, given the concerns that I've expressed to you with respect 
to those things that I've seen. 

The milk delivery that you mentioned would be the perfect. 


kind of vehicle for electric batteries, because when you think 
about it, it's a relatively short distance, the milk route, 
generally speaking, for a delivery. 

We've talked about other uses. But the fact is, the 
range is very limited. By the turn of the century, we think we'l^ 
have batteries that could conceivabely double those numbers and 
make this, I think, competitive in every way with the internal 
combustion engine. 

What we want to make sure is that we bring this on line 
in a way that doesn't give people a sour experience with early 
vehicles so as to damage the more successful introduction of a far 
more capable battery and platform in the later years. 

SENATOR PETRIS: Is this being done in other countries? 

MR. ROBERTS: To my knowledge, the experiments that are 
in the work that particularly General Motors has done here in the 
United States is really state of the art. 

Sony is spending a lot money on a lithium ion battery 
that looks like -- has a great deal of promise. It's being testec 
in Japan. I think the Japanese have a lot of interest, especially 
when they look at the way the winds generally blow, and look at 
the possibility of having the Chinese driving a lot of cars. I 
think they would like to see them in electric cars because of 
their own concerns. 

But the fact is, there's going to be a lot money to be 
made if somebody is successful in producing a car -- 

SENATOR PETRIS: It seems to me I heard several years age 
that Japan had developed it. They had them in vans, and they had 
them in small light delivery vehicles, but I haven't seen much 


about it since. I don't know whether these are hopes or 
realities. It seemed like reality. They had a picture of it, and 
everything. It was like Econoline Ford vehicle. 

MR. ROBERTS: I wouldn't be surprised that that's 
happening. But again, with the more advanced batteries, I think 
that the testing programs probably haven't gotten that far. 

SENATOR PETRIS: How much time more do you think we'll 
need before we are successful on the electric side? 

MR. ROBERTS: Part of what we're discussing would require 
that within two years, we start to see the advanced batteries intc 
use on the streets in California. 

And whether we would have those in full production by the 
year 2000 or not is not clear yet, but somewhere between 
2000-2001, that time period, we'd expect to see other types of 
batteries with a much longer range. 

SENATOR PETRIS: Is General Motors doing this alone, or 
have they formed some kind of consortium with other companies to 
work together on that? 

MR. ROBERTS: Each of the companies is working 
separately. I think there is an advanced battery consortium in 
which the major companies are participating. 

Part of what we're discussing with them would be that 
they would contribute $35 million to continue to support that on a 
very high level, the research that's being done by that group. 

SENATOR PETRIS: I think they got a waiver from the 
federal government on antitrust legislation in order — 

MR. ROBERTS: Yes. As far as this consortium, that's 
correct. I don't know if it's a waiver, but they're certainly 


able to work as a group. And basically what they're doing is, 
they're funding other companies also on research for this, for the 
development of a far more capable battery. 

SENATOR PETRIS: I think it's time for me reintroduce 
some of my legislation. I had one that offered 25 million bucks 
to the first person or company that came up with a feasible 
electric car. No takers so far, so the money's gone. 

MR. ROBERTS: Well, I think the reward's going to be 
even greater than that when they're successful. 

SENATOR PETRIS: This was a long time ago. It'll be 200 
million this time. 

When's last day for introducing bills? 

Thank you. 

CHAIRMAN LOCKYER: Other questions from Members? Senator 
Lewis . 

SENATOR LEWIS: What was the name of the vehicle you were 
driving, the electric vehicle? 

MR. ROBERTS: The electric vehicle was what was called 
the Impact, and now General Motors has renamed it, and I think for 
good reasons, their EV-1. It's the first vehicle, I guess also, 
passenger vehicle, to carry the General Motors label and will be 
marketed through their Saturn dealerships in Los Angeles and in 
San Diego later this year. 

SENATOR LEWIS: What is your understanding of what price 
consumers will pay for that? 

MR. ROBERTS: What I'm told is that they're looking at 
something in the $30-35,000 range. 

And I asked the question if this vehicle would be 


available through lease agreements, and was told that it would be, 
which I thought would be a way to help to get it started, 
especially for people who are hesitant to buy into a new 

SENATOR LEWIS: Do you think, at a $30-35,000 cost for a 
vehicle that has a forty-mile range, do you think there'll be 
sufficient consumer demand to meet that initial requirement? 

MR. ROBERTS: Well, I think there'll be -- first of all, 
it's very definitely not a large market. 

Secondly, I think that what you're talking about is 
wanting to get enough of these on the road so we can get a lot 
more information, and we can start to also develop a corresponding 
infrastructure system. 

There's a lot of questions that need to be answered. 
There's no adoption of uniform standards with respect to charging 
units. And we'd like to see some uniform standards, for instance, 
where there's no reason why those can't be in shopping centers anc 
at various places around the city so that if you need a charge, 
and you're away from home, you'd be able to get it. I know that 
there are some areas in which we're starting to see those charginc 
stations put in by the public. 

But we've got a lot of work to do . I think the way to 
get started is to get these cars on the road and become familiar 
with them. 

SENATOR LEWIS: The initial target was two 

MR. ROBERTS: The initial requirement in '98 was going tc 
be two percent. 


SENATOR LEWIS: And the way that worked was, you could 
only sell X number of cars based on however many of the electric 
vehicle that you sold? 

MR. ROBERTS: For the seven largest manufacturers it was 
to be two percent of their total sales in California, each of them 

SENATOR LEWIS: So the incentive would be to lower the 
cost below market value on the two percent of the vehicles so that 
you'd be able to sell more of the others? 

MR. ROBERTS: I'm not sure if I'm following you, Senator. 

SENATOR LEWIS: What happens if there's two percent of 
your customer base is not willing to buy this particular vehicle? 
Then you have to restrict the number of the other vehicles that 
you can sell? 

MR. ROBERTS: No, I think what they had to do was produce 
them. I'm not sure that the way the regulation was drafted that 
they necessarily had to be sold. They had to be produced. 

And I would imagine if they produced it, they were going 
to figure a way they would sell it. But that's all part of what 
our concerns are, is to have people producing large numbers of 
product that might not have a strong market. 

SENATOR LEWIS: How does it ultimately get resolved? 
What good does it do us to have a fleet of unbought expensive 

MR. ROBERTS: We are more interested in getting these 
cars on the streets, as I suggested in my comments. There's a lot 
to be learned by us, and there's a whole lot of related issues 
that come into play. 


You know, I didn't make the point, and I should have, in 
the year 2003, the requirement is that there be ten percent of the 
producions in electric cars. That has not been changed. 

SENATOR LEWIS: To the degree that there's these 
arbitrary requirements, doesn't it follow that for them to be able 
to keep their market share for selling other automobiles in the 
State of California, that they would at some point in time have to 
heavily discount these cars? Would that necessitate driving up 
the cost of the other vehicles? 

MR. ROBERTS: I think if they — if they had to produce a 
relatively large number of cars with lead acid batteries, that 
they're going to have to figure a way to price them that would -- 
that some of those costs are probably going to have to be shifted, 
yes . 

SENATOR LEWIS: And at that price, if a consumer is going 
to pay $25,000 or $30,000, that's basically the cost of many '95 
or '96 models, which, because of increased technology, are lower 
polluting anyway. I wonder about the strategy that's being 

SENATOR PETRIS: It means saving on gasoline; you save 
money on gasoline. 

MR. ROBERTS: From everything I've seen, there is a 
savings, reduced operating cost, with these electric vehicles, 
yes . 

SENATOR PETRIS: I took a ride in an electric car years 
ago up the steepest hill in Berkeley that had both electric and 
gasoline; you could switch back and forth. It was just electric 
only. And the person did that to refute the criticism that 


there's no power and it's hard to go up a hill. 

He took me up Marin, which is the steepest one in 
Berkeley, which I don't care to climb again, actually. It's just 
too steep for me. 

But I was very impressed. This was a long time ago. 

CHAIRMAN LOCKYER: Coming down is fun. 

SENATOR PETRIS: Coming back, we took another street at 
my request. 

MR. ROBERTS: The performance of these cars with respect 
to the power, I think, any perceptions that they don't perform 
ought to be dispelled when you see a few of these on the streets 
and if you spend any time driving them. 

They perform with respect to their acceleration, with 
respect to their top end speed, all the way right down the line 
they perform admirably. 

I think range is the issue. 


CHAIRMAN LOCKYER: Other questions. 

What's been the hardest issue for you to face as a member 
of the Board this last year? 

MR. ROBERTS: I think this issue, and I think because we 
all come to it with some strong feelings. I think the potential 
benefits out there are enormous, both environmentally and from a 
business standpoint. I'd like to see California businesses also 

So, I think without a doubt, we've spent a fair amount of 
time on the fuel, though, also, as I mentioned. We spent time 
with the people in that industry to make sure that we've learned 


something from the diesel fuel problem of a few years ago and have 
a successful introduction this year of what clearly is going to b€ 
the most significant change. 

CHAIRMAN LOCKYER: It appears that while progress is 
being made, we're not going to make the clean air goals. 

Any sort of thoughts about what strategies are still 
available that might work on either -- 

MR. ROBERTS: Well, I'm not — there's what we refer to 
as the black box. There is still a part of the over-all goal 
that is not identified as to how we're going to get there. 

But as we work through some of the problems, and I've 
been involved in one locally where we found out that we were goinc 
to get a much higher savings, for instance, from our local utility 
company with respect to pollutants than we had planned. And what 
I'm hoping for, if there are maybe a number of areas, and these 
are fairly significant, maybe that black box is not as large as it 
appears to be right now. 

But I think we can't lose sight of the fact that we are 
making -- we're making strong progress. And I think maybe by 
looking at in detail some of these other aspects that we might 
find that we can provide the missing part of that plan. 

CHAIRMAN LOCKYER: Is there anyone present that wishes tc 
comment, express concerns? Yes, sir. 

MR. BAUTE: Yes, Mr. Chairman. 

Good afternoon, distinguished Members of the Committee. 
My name is Mark Baute. I'm here both as a California citizen and 
as an attorney representing the California renewable fuels 


As a matter of protocol, I'd like to start by saying we 
neither oppose nor support, but I have some facts that dove-tail 
rather directly with questions and statements I've heard, both by 
Senator Lewis, Senator Petris, and by Mr. Roberts himself. 

For the last year, I've been in fairly active litigation 
with the California Air Resources Board in an Open Meeting Act 
case. And in the course of that case, I've taken the depositions 
of Cal-EPA Secretary Strock, the former CARB Board Chairperson 
Schafer, the current Executive Director, Mr. Boyd, and three or 
four of the staff scientists, in the context of one rather 
ambitious pollution reduction initiative sponsored by fed EPA, 
called the renewable oxygenate requirement. 

I guess there's the good news, bad news. Perhaps the 
good news is that Mr. Roberts may bring a new perspective to 
what's currently happening. 

The bad news is that the way this Board and this agency 
are presently functioning is not anything remotely resembling what 
we've heard during the last 30 minutes. 

I think the record in that case, and I want to share it 
would you here, both for purposes of further questions for Mr. 
Roberts and later Mr. Silva, there are two problems. One is, the 
Board is not functioning as an independent Board at all. In fact, 
the Board has recently stated openly that it not an independent 
Board. And I have a quote from the Board itself to supply you 
with on that. 

Second, the Board, even if it had the noblest of 
objectives, is not active enough for the simple reason that the 
agendas for full-blown debate are controlled by lower level staff 


members. They completely control what issues rise to the level of 
a public meeting for full-blown debate. 

There are critical public policy issues today that never 
see the light of day. 

On the issue of independence, not withstanding the press 
releases of this administration during the ZEV issue that we've 
heard so much about, about how Governor Wilson would have to defer 
to the wishes of an independent Board. 

On December 7th of last year in a public filing, this is 
a verbatim quote from the California Air Resources Board in the 
litigation at the time, represented by the Attorney General's 
office. Quote, "Air Resources Board members do not have the 
independence that an elected or fixed term board would have, since 
they may be removed at any time." That sentence standing alone 
may sound benign, maybe potentially dangerous. 

It's a follow-up sentence that CARB placed in the record 
that is much more dangerous. Quote, "The appointed and 
at-pleasure status makes it clear that the Board is to carry out 
the Governor's policy choices," end quote. 

The stated position of this Board is, you do what the 
Governor wants, when he wants. It's in writing, and it's not in 
dispute, no matter what we're hearing now today. 

Now, that's one problem. A second thing I've noticed in 
this case is that even if this Board were functioning as an 
independent board and people were making independent judgements 
and decisions that may sometimes conflict with the wishes of this 
administration, when a sensitive issue like that's on the table, 
the agency has managed to find a way to circumvent the public 


meeting process, and to prevent the Board from even getting access 
to it, and, in turn, prevent California citizens from providing 
their input on those policies. 

As a result, public policies can be developed in this 
area of air pollution regulations in private, in closed meetings, 
because they will never make it to an open meeting. 

On December 29th, on another public filing, CARB made it£i 
position on this issue also perfectly clear. "The Open Meeting 
Act" -- this is a quote — "does not contain any requirement that 
particular issues be addressed at public meetings. It also does 
not contain any criteria for determining that an issue is so 
important that it must be dealt with at a public meeting." End 

Now, in the abstract that may be fine. Here's how it 
plays out in the real world. If there is sensitive policy issue 
where the Governor's Office, or for that matter, any 
administration, wants a particular result, if that is the way the 
issue is handled, that administration can get any public policy 
result it wants by making sure that it is handled below the Board 
level and below the public meeting level by staff members, and 
then later published to the outside world. 

I want to provide you a real world context for how it 
happened in this case. 

In late '93, fed EPA proposed the renewable oxygenate 
requirement. Dispensing with the details of the science, the 
reason for the initiative was two-fold. One, it's known and 
accepted that oxygenates as a gasoline additive reduce toxic 
pollutants. They reduce four different kinds of toxic 


pollutants. You've heard some of the terminology. They reduce -- 
they can reduce PM-10 emissions, carbon monoxide emissions, NOx 
emissions, and what are called volatile organic compound 
emissions . 

But what the fed EPA renewable oxygenate requirement 
suggested was that of those oxygenates that are already required, 
a precentage, namely 30 percent, would be renewable fuel sources. 

Now, here's how CARB reacted to that in terms of its 
policies. The Western States Petroleum Association had a series 
of private meetings with the Board Chairperson and staff member 
scientists. That resulted in two policy documents: February 14, 
1994 official CARB comments, and a later July affidavit signed by 
Secretary Strock on behalf of CARB also purporting to state the 
public policies and determinations of the California Air Resources 
Board on this federal initiative. 

Not once was the matter debated at an open meeting. The 
only Board member whoever learned about it was the former 
Chairperson, whose confirmation was denied. And she, like 
everyone else at the California Air Resources Board, went out of 
her way to sponsor the views and the policy choices of this 
administration and of the petroleum industry. 

What I think it means in terms of today's public policy 
of this agency is that we may have ticking time bomb. These 
issues are highly technical. You could see the eyes of Senators 
begin to glaze over when we got into technical discussions about 
ZEV. You could feel it in the audience. These are very tricky 
issues, but if the public policies aren't scrutinized, they're not 
even brought to the Board level, and the Board members who were 


there are not independent, you end up with public policies that 
are not well-founded, and that, in fact, have the exact opposite 
effect . 

As an example, we believe that the use of the renewables 
can accomplish four policy objectives. It can create an entirely 
new industry. We believe that the use of renewables as an 
additive can reduce the four kinds of pollution I mentioned. 

But if the process isn't handled right and the Board 
isn't functioning independently, you don't even get that far. Anc 
the debate has yet to happen. And policies, I believe, based on 
what I've seen, are being made without the studies or the 
impirical evidence to back them up. 

I ' d be happy to entertain any questions. 

SENATOR BEVERLY: Any Member have any questions? Senator 

SENATOR AYALA: I have a question. 

We have a number of letters of support for Mr. Roberts. 
I think as of this morning there was no opposition. 

When did you develop your opposition to the nomination? 

MR. BAUTE: There is -- my opening statement, there is nc 
formal opposition or support, merely comment at the request of 
Chairman Lockyer. 

SENATOR AYALA: You're merely stating facts, not 
necessarily opposition to the nomination? 

MR. BAUTE: That is correct, Senator Ayala. 

SENATOR AYALA: You claim that the Board has not acted 
independently. They're all appointed by the Governor. 

What do you expect? Same with the Board of Education. 


Every member reflects the thinking, philosophy of the Governor. 

MR. BAUTE: Here's what I expect. 

SENATOR AYALA: It was true when Democrats were in charge 
of the gubernatorial office. 

MR. BAUTE: I expect in instances where it's clear that c 
pollution control or reduction objective can be met with choice X, 
and choice X squarely contradicts the desires of the Governor's 
Office, and perhaps also contradicts the petroleum refiners 
wishes, that choice X may nevertheless carry the day, and that one 
or more Board members be willing to vote for choice X in that 
hypothetical, even if it means they may be removed. 

I don't think we have that today. 

SENATOR AYALA: Mr. Roberts has the support of the 
Environmental Health Coalition, as well as the Industrial 
Environmental Association. Isn't that a balance there of some 
kind? Two extremes. 

MR. BAUTE: I think those endorsements are probably 
well-founded and genuine, but I'm not convinced that they negate 
any of the concerns that I have expressed. 

SENATOR AYALA: No more questions. 

SENATOR BEVERLY: Any further questions? Senator Lewis. 

SENATOR LEWIS: I wanted to ask Mr. Roberts, how much of 
this is new to you? How much of this have you heard prior? 

MR. ROBERTS: How much of this? 


MR. ROBERTS: This is first time I've heard this. 

MR. BAUTE: And indeed, in fairness to Mr. Roberts, one 
of the problems that I think spent some time trying to point out 


is that there are public policy issues of significance that are 
not making it to the Board level. 

And Mr. Roberts may end up flying up from San Diego once 
a month for a meeting. That does not leave him in a position to 
necessarily control what a sophisticated staff chooses to put on a 
meetings agenda for purposes of public debate. 

SENATOR LEWIS: Mr. Roberts, don't the individual members 
have the ability to shape the agenda? 

MR. ROBERTS: I think that we do. 

I think what we're seeing here is an introduction of an 
issue of which I -- I don't want to appear to knowing all that's 
going on. It was my understanding that there was a study that was 
going on, and I expected that in the future, we would see this on 
an agenda. 

I would assure you that I will look into and be much more 
familiar with this and find out. If somebody is holding back on 
staff, we'll find it out. 

I do get a little concerned. I'm part of enough boards. 
Occasionally things maybe do get held from you that you should be 

I can assure you that this issue will receive its fair 

SENATOR LEWIS: It's not an uncommon complaint that 
certain boards and commissions are largely staff driven, so 
perhaps maybe you two can talk a little more after this hearing is 

SENATOR BEVERLY: Senator Petris. 

SENATOR PETRIS: Well, I think this witness has raised a 


very important point. We did have the situation where our 
Governor strongly attacked and fought against EPA requirements 
regarding air pollution. And he was accused at the time of 
carrying the banner for the oil companies in this state, instead 
of making a better public policy stance. 

That was James Strock who was the Cal-EPA Secretary, who 
issued a press release attacking Vice-President Al Gore for 
casting a vote in the U.S. Senate in favor of the federal rule anc 
joined lawsuit initiated by the oil companies in California. 

So that kind of thing needs some exploration and 
explanation. To me, it looks like the Governor was favoring the 
oil companies with the air pollution rather than oppose them and 
take a strong stand in favor of the CA1-EPA. 

Is that your impression? Is that what you're trying to 
tell us? 

MR. BAUTE: It is my impression. 

To both give Mr. Roberts a fair session and to provide a 
little bit of additional information, the study that he's 
referring to was a study that was started after the subterfuge on 
CARB's response to the ROR rule had already taken place. 

In more private sessions, CARB was fundamentally accused 
of having made conclusions on supposed pollution control impacts 
without having done the studies at all and having no data to back 
it up, and in fact, having one study in their possesion that 
contradicted their conclusions. So, policy got made without the 
impirical evidence. 

Now the study is being done as a matter of catch-up. 

But yes, the answer to your question is yes. I have a 


very grave concern that pollution control policies that are dense 
scientific issues can be glossed over, and you can end up with 
policies that aren't closely scrutinized because you have a 
sophisticated staff, and you end up with a policy that increases 
pollution rather than decreases pollution. 

SENATOR PETRIS: Do you have any comments on that and on 
the specific issue that I raised? 

MR. ROBERTS: Well, all I can tell you — 

SENATOR PETRIS: Probably before your time. 

MR. ROBERTS: A lot of this is. That's why I've 
suggested that I'm glad to get together with Mark. Glad to look 
into this. 

I have no interest, other than if this product will work 
as an oxygenate and will help to reduce pollution, I'll assure you 
that at least this member of the Board will have an interest in 
seeing that happen. 

SENATOR PETRIS: Well, the issue arose when the feds 
adopted that after their studies and established the renewable 
oxygenates program, which was promptly challenged by the state 
through the Governor, he said no, which happened to be same policy 
as the oil companies, which raises questions in my mind as to 
whether their interests are being served or the state interests, 
the public interests. 

If you haven't encountered it, I would urge you to take a 
very good look at that. 

MR. ROBERTS: There was nobody in the Governor's Office 
that has talked to me about this issue, and nobody on our staff. 
We haven't had to deal with it as an issue in the last year, but 


will assure you that I would -- 

SENATOR PETRIS: At the time, it raised questions of the 
Board's independence/ not just from the Governor, but from the oi] 
companies. They seemed to be doing bidding of the oil companies, 
which is even worse than doing the bidding of the Governor if you 
don't agree, because the Governor we can talk to in an elective 
setting, elective office setting, but we don't elect the oil 
companies . 

MR. ROBERTS: Mr. Senator, let me tell you, in my 
remarks, I said it was my interest not only in my own city to 
contribute to cleaning up the air, but in the state. For elected 
officials, these are not paid positions. These are positions that 
enable us to become more involved in a public policy debate. 

Today was first time I had heard I could even be removec 
prior to the completion of the term. For one, I wouldn't lose a 
lot of sleep over being removed for doing what I felt was the 
right thing. 

SENATOR PETRIS: I'm glad to hear that. 

Now, on another part of the problem, pesticides. 

The ARB has been urged from time to time to get into 
that, and the answer has been, well, that's part of the pesticide 
registration, and we don't have jurisdiction. Yet, it's a heavy 
polluter in the valleys where it's used. 

We use more pesticides in this state than a whole bunch 
of other states combined. Well, we're a bigger state, we have 
more farm land, that's understandable. But it's enormous, and 
that stuff is toxic. You know, it can hurt people. It hurts — 
it erodes buildings. 


I remember in your district, San Bernardino -- and I was 
very active in this field -- we learned from the scientists and 
public reports that the massive clouds of pesticide that were usee 
in the valley, and winds carried over to the mountains, actually 
eroded the buildings in San Bernardino; just ate them up. They 
had a lot of problems with it. 

That's pretty horrible stuff. If it does that, it's not 
going to be very kind to your lungs or mine. 

MR. ROBERTS: I didn't mean to imply that the Air 
Resources Board isn't doing anything or doesn't have any 

Again, it's my understanding that there is something in 
the works, and that will be before us in the coming year. 

SENATOR PETRIS: I can understand that some Members might 
say, well, that's all under the other agency and we won't bother 
with it. But it seems to me, once it gets up there in the air, 
it's your baby also. So, I hope they will look into it. 

MR. ROBERTS: We are also dealing with this at a local 
level. I can tell you, as an elected official on the local level 
as a county official, we've been looking at at least some of the 
pesticides that are being used. 


SENATOR BEVERLY: Any further questions of the witness 01 
of Mr. Roberts. 

Anybody else in the audience who wishes to be heard in 
favor or against the nomination. 

What's the pleasure of the Committee? 

SENATOR AYALA: I'll move the nomination of Mr. Roberts 


to the Air Resources Board. 

SENATOR BEVERLY: The motion is to recommend 
confirmation. Call the roll. 

SECRETARY WEBB: Senator Ayala. 


SECRETARY WEBB: Ayala Aye. Senator Lewis. 


SECRETARY WEBB: Lewis Aye. Senator Petris. 


SECRETARY WEBB: Petris Aye. Senator Beverly. 


SECRETARY WEBB: Senator Lockyer. 

SENATOR BEVERLY: Place the matter on call. 

MR. ROBERTS: Thank you very much. 

SENATOR BEVERLY: Proceeding with the agenda, Mr. James 

The rest of these folks are all in support of your 

MR. SILVA: I hope so. 

SENATOR BEVERLY: Tell us briefly why you think you're a 
suitable candidate for this post. 

MR. SILVA: Mr. Chairman and distinguished Members of the 
Senate Rules Committee, for the record, my name is Jim Silva. As 
you know, I've been appointed to the Air Resources Board to fill a 
seat which is designated a nontechnical slot for a local elected 
official . 

I'd like to start on personal note, and then I will tell 
you my qualifications, which I feel will allow me to serve 


effectively on the Air Resources Board. 

As a lifetime resident of Southern California, I have 
seen many changes in our local environment, including the quality 
of the air we breathe. I was born in Fullerton, raised in Garden 
Grove, and I've spent 25 years of my married life in Huntington 
Beach, where my wife Connie and I have raised our two children. 
In January of ' 95, I was sworn in as an Orange County 
Supervisor. I might add, I took office one month after the County 
declared bankruptcy. 

Prior to serving on the Orange County Board, I was a high 
school teacher and coach for 28 years. In the early '70s, I was 
directed many times to cancel football practice because of Stage 
Three smog alerts in the South Coast Basin. 

Thanks to stronger rules and regulations on stationary 
and mobile sources, our air is much cleaner and healthier to 
breathe. Most of our high school students today are not familiar 
with things like smog alerts. 

But I've also witnessed in recent years many of my 
students that have moved from California because their parents 
lost their jobs. Jobs that were lost as a direct result of air 
quality regulations. Jobs that were relocated out of California 
to other states. 

I hope to be a positive voice for the environment and 
economic balance. 

Previous to my election to the Orange County Board, I 
served on the Huntington Beach Planning Commission, City Council, 
and was Mayor of Huntington Beach in 1992. I am currently a 
member of the South Coast Air Quality Management District's Board 


of Directors. 

I have found my time as a member of the Air Resources 
Board to be very challenging. The ARB staff has been excellent ir. 
training and preparing me to be a valuable member of this 
distinguished Board. I realize that staff is not always right, 
but I feel very confident that they are not only experts in their 
fields, but extremely open and honest with me. They understand 
the issues. I have had on-the-job training at its best. 

In preparing to evaluate ARB issues, I have been driving 
an assortment of cars from the South Coast District fleet. 
Included in these have been low emission vehicles, ultra low 
emission vehicles, and zero emission vehicles. These experiences 
have helped me in making better decisions regarding the latest 
technology, especially the status of the battery 

A successful launch of the ZEV program depends upon 
people's willingness to buy the vehicle. The ability to realize 
the emission reduction depends upon the people's willingness to 
drive the vehicle. 

I firmly believe that for a program to be successful, it 
will have to be market-driven. Over the past seven years as a 
Councilman, Mayor, and Supervisor, I feel I have the reputation of 
being fair but tough. There are crucial problems that have to be 
solved and a rubber-stamp approach will not work. 

Even my opponents will tell you that I return all of my 
phone calls. I consider communication to be important at all 
levels of public service. For that reason, I am extremely 


As a life-long resident of Southern California, my wife 
and I some day hope to see our grandchildren raised in Southern 
California, a Southern California that is made up of clean air anc 
economic opportunities. 

It has been a pleasure serving on the ARB Board this past 
year, and I would like to be a part of the solution to the many 
air pollution problems that surround all the citizens of 

Thank you for the opportunity to speak before you this 

SENATOR BEVERLY: Thank you, sir. 

Any questions of the nominee? Senator Lewis. 

SENATOR LEWIS: Just a comment, Mr. Chairman, and that is 
that I know Mr. Silva in his capacity as an Orange County 

I'm glad that he clarified the fact that he was elected 
post bankruptcy. Anybody that could survive tumult of the last 
year has to have quite a bit of mettle, and he certainly has done 
that . 

I also want to note that last week at our hearing, I 
found fault with our Senate Rules appointment to the South Coast 
Air Quality Management District on the grounds that I thought she 
was one of the majority that had collectively thumbed their noses 
at the Legislature by not wiping out once and for all the mandatec 
trip reduction plan in the South Coast District. 

I was pleased to note that Mr. Silva was one of the 
minority that did uphold the role of the Legislature and voted 
against the adoption of that plan. 


I strongly support Mr. Silva's nomination. 

SENATOR BEVERLY: I see he also the the support of 
Supervisor Bergeson, a former colleague of ours. 

Any further questions? 

MR. SILVA: Mr. Chairman, if I may make a comment, I have; 
some people with me from Southern California that have an airline 
flight. Would it be possible to have them speak? 

SENATOR BEVERLY: I think so. Any problem? 

Any of those who wish to testify that have to leave, 
please come forward. 

MR. GREEN: Good afternoon, honorable Members of the 
Committee . 

My name is Peter Green. I'm on the City Council of the 
City of Huntington Beach. Jim and I have served together for 
several years on that council. 

I have found him to be at times a formidable enemy, and 
other times a valient opponent, and sometimes -- and always a gooc 

And I'm here to support the letter that I have written ii 
you wish further comments. 

I certainly strongly support his confirmation to this 


SENATOR BEVERLY: Thank you very much. 

Any questions of the witness? Anybody else. 

MR. TRUDELL: Good afternoon. I should say evening 


Mr. Chairman And Members of the Committee, I'm Alan 
Trudell. I'm here representing the Garden Grove Unified School 


District in support of Supervisor Silva's confirmation to the Air 
Resources Board. 

As he stated earlier, Jim is a long time community 
member. I know him better as a tireless supporter of public 

Prior on his election to the Orange County Board of 
Supervisors, he served the young people of the Garden Grove 
community ably for 28 years as a high school civics and economics 
teacher for our school district. And most recently, Jim and his 
staff have been instrumental in representing the unique needs of 
public schools, and particularly those in Orange County, as Orange 
County's representative to the South Coast Air Quality Management 
District Board of Directors. 

His responsiveness as a leader, and his compassion for 
the children, are evident as he helps craft environmental policy 
for the South Coast Basin. We are sure he'll carry his dedicatior 
and understanding to the Air Resources Board. 

And again, we want to strongly endorse his confirmation 
to the Air Resources Board. 

I'll be happy to entertain any questions that you may 
have . 

SENATOR BEVERLY: Any questions. 

Thank you, sir. 

MR. TRUDELL: Thank you, Mr. Chairman. 

SENATOR BEVERLY: Next witness. 

MS. MORRISON: Good afternoon, Mr. Chairman and Committee 
Members . 

My name is Adrianne Morrison. I'm the Executive Director 


of an environmental group called the Amigos de Bolsa Chica in 
Huntington Beach. We are very proud to be able to support his 
appointment to this position. 

We find that he's always been fair, and he's been 
reasonable. He returns his calls. He's had a good staff who's 
worked with us both through the city and the county level. It's 
with his support that we've been able to forge a plan that's gone 
forward with Bolsa Chica that was just decided last week. 

So, we do endorse his appointment to this 

Thank you. 

SENATOR BEVERLY: Thank you very much. Any questions? 
Apparently not. 

Anybody else? 

SENATOR AYALA: Question for Mr. Silva. 

SENATOR BEVERLY: I think Senator Petris was in 
order . 

SENATOR PETRIS: I'm curious about the job losses. Can 
you identify those in more detail? 

MR. SILVA: Yes. We have -- I teach in a school of 
approximately 80 percent minority, and the kids move in and out 
all the time. And when they do leave, oftentimes they'll come up 
and say, we're leaving because of my father's job is no longer 
there . 

Three years ago, we were in Colorado Springs, and I 
noticed that there was a lot of building going on. I've asked the 
people there, I said, oh, I can't believe how Colorado Springs is 
really growing. They said yes, we received a lot of businesses 


from California that have relocated from California to Colorado. 
And it's a variety of areas. 

I do feel that there has to be a very strong balance 
between the environment, because the environment has a cost, and 
health issues, that if people are sick and in the hospital, if 
people die, that has a financial impact. And we balance that 
against the jobs that we need in Southern California, especially 
in Orange County, to help solve the financial crisis that's taking 
place there right now. 

SENATOR PETRIS: You didn't elaborate on the cause of 
their moving. How do you know they moved because of -- 

MR. SILVA: Being in the same school for 28 years, I do 
get the know the families, and it has been brought up that because 
of the requirements that have been placed on business, jobs have 

And I've found that to be true in working with the Air 
Quality District, AQMD. I've had people on staff there say that 
there have been times that there's been over reaction, and what 
they're doing now is trying to make sure that we have a healthy 
environment and a healthy economy. 

SENATOR PETRIS: I'd like to get some verification of 
that, because I've heard this story before. It was used 
extensively in L.A. for a while: a lot of companies are moving 
out of L.A. because of the smog. 

I checked out one or two of them who went to Texas. And 
Texas said, we don't have these smog regulations here, so come on 
down to Texas. It turned out that wasn't the reason they moved at 


In another case, the company made -- you see, companies 
do this. They make a public announcement as to why they're 
leaving. They may not like the local Softball team, for all I 
know, and that's the real reason, but the public explanation they 
give is smog, or labor relations, or some other problem that isn't 
remotely related. 

Another one I checked out in our area which made a public 
statement of that kind which excited my interest, it turned out 
that the decision for moving their plant had nothing to do with 
local conditions. It was a consolidation decision by the national 
board back in Tennessee, and they were consolidating in a certain 
place and pulling people in from all over the country. Yet they 
lied in their public statement and said, "We're leaving here 
because labor relations are no good. The unions are too strong." 
That's what they said in that particular case. 

So, I'm very suspicious of the public reason given, you 
know, by a particular company as opposed to the real reason, the 
underlying causes. 

So I'm wondering how many details you have in those 
particular cases that verifies that they're actually leaving for 
the reasons stated? 

MR. SILVA: As an elected official, I know that I've 
talked to many people over the last seven years that have told me 
one thing, and I have found out later on that that was not true. 
I wish that there was some way that when people testify before my 
board, that a light would come on if they're being honest or if 
they're not, but that doesn't exist. 

I just know of situations where families have had to 


move; they've sold their house, often times at a loss, and it's 
been told to me that the reason is, the jobs no longer exist. 

SENATOR PETRIS: I know, but why doesn't the job exist? 
Why is the company leaving? Is it base closures in the area? Is 
it any number of other things? Is it a real estate change, that 
costs are going up and they can't afford to stay there? There are 
a lot of different reasons that cause people to leave. What were 
the reasons in those cases? 

MR. SILVA: I couldn't cite you any specific examples 
because I haven't talked to the employees -- excuse me, the 
employers, but I have talked to the students, and I have talked to 
parents. And I've never -- at that time I was more concerned with 
trying to get across my economics lessons than trying to find out 
why they were leaving. 

But I've been told that because of tighter regulations in 
Southern California, the jobs no longer exist. 

SENATOR PETRIS: Okay. Getting back to the Texas one, 
you're talking about tighter smog control regulations. I come 
from another direction. 

When I first got into this problem, smog in L.A. was the 
cause, the fastest rising cause of death in L.A. County among 
certain population ages, especially elderly, who might have had a 
heart problem. It polluted the blood. It accelerated the deaths 
and so forth. 

But that was not ever given by the Chamber of Commerce as 
the reason. They just said we're leaving because of this or 
that. It didn't say anything about how horrible the problem was 
to people's individual health. They were fighting the 


regulations . 

So, in a statement during one of our committee meetings, 
when the committee was informed that a certain company left L.A. 
and went to Texas, we inquired about the degree of the problem in 
L.A. And it turned out to be pretty severe, but they didn't have 
any information on what the situation was in Texas, other than the 
Chamber of Commerce brochures that said, we don't have that kind 
of problem here, so come on out to Texas. 

Now, the parting shot is what disturbs me. The parting 
shot made by the company, which I found is not always reliable. 
So, I made a statement that drew some flak, which was, well, if 
it's true that you're poisoning the atmosphere in this community, 
good riddance. If you have to poison somebody, go poison the 
Texans who have invited you. 

That didn't sit too well. I got letters from Texas on 
that. They say, why do you "want them to poison us? And I to 
write back and say, well, here's the rest of the statement. 

So, that's why I raised the question. It's rather a 
serious one. I don't mean to make light of it. 

MR. SILVA: I know what it's like going out to a football 
practice, only to have the principal walk out and tell you that 
practice is over. And you know exactly what's. going on. Your 
lungs hurt, your eyes are red. 

And in the last several years, we haven't had that 
problem, and I know it's because of regulations, and they have to 
be there. I firmly agree. 

SENATOR PETRIS: Well, listen, when I was working on 
this, they did a survey of certain communities in L.A. and the 


most affected areas. The seaside areas were okay because of the 
sea breezes, but internally, they couldn't find a twelve-year-old 
child anywhere in those communities who was born and raised in 
that community that did not already have objectively measured 
signs of lung damage due to air pollution. 

That's one of the things that excited my interest even 
more. I'd been working at it for quite awhile. 

MR. SILVA: That, too, Senator, I might add, is a cost tc 
all of us. 

SENATOR PETRIS: Of course it is, the whole state. 

SENATOR AYALA: I have one question. 

What is the status of the zero emission vehicle program, 
and does the ARB have a position on it? 

MR. SILVA: Right now it is coming back before the Board 
in March. 

I've had the opportunity to drive two of the vehicles, 
and I believe in them. I feel that one day in Southern 
California, we're going to see that to be a very common vehicle. 
I think that right now there's some stumbling blocks or hurdles 
that we have to get through, but the Board will be taking action 
on this in March. 

Personally, I like the vehicles, but I do have a concern 
about the cost, number one, and number two, the range of the 
vehicle . 

SENATOR AYALA: But in March, there'll be some action 
taken by the ARB — 

MR. SILVA: There will be. 

SENATOR AYALA: --on that policy? 


MR. SILVA: Yes. 

SENATOR AYALA: Thank you. 

SENATOR BEVERLY: Any further questions? Senator Petris. 

SENATOR PETRIS: I don't mean to belabor this, but in oui 
background material here, I just want to point out that it says 
that 90 percent of all Californians live in areas that exceed 
federal and state air pollution limits. In the L.A. air basin, it 
exceeds the federal ozone smog standard by up to 200 percent on 
roughly one half of the days each year. So, every other day, 
they're exceeding air pollution. 

This excessive pollution causes damages to public health, 
to crops, to buildings, and the environment generally. 

I don't want to keep harping on it, but it's a very, ver^ 
big problem. 

But you said in your opening it didn't seem to be -- the 
problem seemed to be they're leaving because the smog regulations 
are too tough. If I lived in an area, I know you're not from L.A. 
but where are you from? 

MR. SILVA: I'm from Huntington Beach. 

SENATOR PETRIS: You're out in the safe area, where the 
breezes take care of it. 

But knowing how harmful this stuff is, the impact on the 
health of people, it goes unheralded. An elderly citizen dies 
who's had a heart disease, the death certificate doesn't say 
smog. But if you analyzed the doctor's report, you'll find that 
the blood condition was totally aggravated and made fatal by the 
additional addition of poison in the form of smog that enters the 
more frail systems of the elderly. It also hurts children a lot. 


They're very susceptible. 

MR. SILVA: Children and our senior citizens are probably 
affected the most. 


Now, on the problem of businesses leaving, would you 
explain? I didn't quite catch your opening statement in which yoi. 
said a lot of businesses are leaving because of tough air 
pollution regulation? Is that what you said. 

MR. SILVA: Yes. 

SENATOR PETRIS: Does that mean you advocate loosening 
the regulations? 

MR. SILVA: Not at all, but I do feel that there are 
solutions out there that we have to continue to find that would 
solve the problem and provide us with a safe, healthy environment, 
as well as a safe healthy economy. 

SENATOR PETRIS: You're working on that? 

MR. SILVA: Very much. 

SENATOR PETRIS: Okay. Thank you. 

SENATOR BEVERLY: Any further questions. 

Anybody in the audience who wishes to testify for or 
against? The witness here who was present earlier, he left. 

What's the pleasure of the Committee. 

SENATOR LEWIS: Move confirmation. 

SENATOR BEVERLY: Senator Lewis moves confirmation. Call 
the roll. 

SECRETARY WEBB: Senator Ayala. 


SECRETARY WEBB: Ayala Aye. Senator Lewis. 



SECRETARY WEBB: Lewis Aye. Senator Petris. Senator 


SECRETARY WEBB: Beverly Aye. Senator Lockyer. 

SENATOR BEVERLY: Place the matter on call, please. 
[Thereupon this portion of the 
Senate Rules Committee hearing was 
terminated at approximately 4:12 P.M.] 


I, EVELYN J. MIZAK, a Shorthand Reporter of 
the State of California, do hereby certify: 

That I am a disinterested person herein; that: 
the foregoing transcript of the Senate Rules Committee hearing was; 
reported verbatim in shorthand by me, Evelyn J. Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel or 
attorney for any of the parties to said hearing, nor in any way 
interested in the outcome of said hearing. 

IN WITNESS WHEREOF, I have hereunto set my 
hand this r ., < j I day of t ., .j^aa^/C^^^- , 1996. 


Vevexyn^j. mizak J 

Shorthand Reporter 


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Please include Stock Number 290-R when ordering. 







ROOM 113 


1:50 P.M. 

FEB 2 6 1996 

SAs O 



Reported by 




ROOM 113 


1:50 P.M. 

Evelyn J. Mizak 
Shorthand Reporter 










GREG SCHMIDT, Executive Officer 

PAT WEBB, Committee Secretary 

RICK ROLLENS, Consultant on Bill Referrals 

NANCY MICHEL, Consultant on Governor's Appointments 


California State University 


Political Action/Legislative Committee 

California Faculty Association 

California State University 

JOHN J . MCCARTHY , Ph . D . , Member 
Industrial Welfare Commission 



Proceedings 1 

Governor's Appointees: 


California State University 1 

Questions by CHAIRMAN LOCKYER re: 

Length of Time in Education 1 

Amount of Time Spent per Week on 

Board Issues 1 

Toughest Decision 2 

Major Challenges to Come 2 

Questions by SENATOR PETRIS re: 

Fee Structure and Student Financial Aid 3 

Board ' s Sentiment on Fees 5 

Higher Fees for Postgraduate Students 5 

Questions by CHAIRMAN LOCKYER re: 

Affirmative Action 7 

Questions by SENATOR AYALA re: 

Compliance with Governor's Affirmative 

Action Executive Order 8 

Remedial Instruction in English 8 

Proposal to Continue Remedial 

Programs only for Minorities, Athletes, 

Artists and Musicians 10 

Questions by SENATOR PETRIS re: 

Ongoing Communication between CSU System 
and K-12 to Correct Problems that Lead to 
Necessity for Remedial Instruction 11 

Timetable for Standardized Testing 12 


Witness in Support: 


Political Action/Legislative Committee 

California Faculty Association 14 

Motion to Confirm 15 

Committee Action 16 


California State University 16 

Background and Experience 17 

Questions by CHAIRMAN LOCKYER re: 

Hardest Decision 17 

Questions by SENATOR AYALA re: 

Position on Affirmative Action 18 

Decision to Phase Out Remedial 

English Instruction by Year 2001 19 

Questions by SENATOR PETRIS re: 

Current Fee Structure and Possible 

Plans to Increase Fees 22 

Fundraising Efforts 24 

Questions by CHAIRMAN LOCKYER re: 

Discussions on Contracting Out 25 

Motion to Confirm 26 

Committee Action 2 6 

JOHN J . MCCARTHY , Ph . D . , Member 

Industrial Welfare Commission 27 

Background and Experience 27 

Questions by CHAIRMAN LOCKYER re: 

Mission Is to Look Out for the 

General Welfare of Employees 30 

Questions by SENATOR AYALA re: 

Position on Raising Minimum Wage 31 

Questions by SENATOR LEWIS re: 

Current Residency 32 

Motion to Confirm 32 

Committee Action 32 

Termination of Proceedings 32 

Certificate of Reporter 3 3 

P-R-O-C-E-E-D-I-N-G-S " 

CHAIRMAN LOCKYER: Appointees, we start, I guess, with 
Mr. Campbell. Good afternoon. 

MR. CAMPBELL: Good afternoon. 

CHAIRMAN LOCKYER: Do you want to begin with any 
opening comments at all? You don't have to. 

MR. CAMPBELL: I'll take questions. 

CHAIRMAN LOCKYER: Well, how long have you been doing 

MR. CAMPBELL: I started out in the early '80s as an 
appointee on the Master Plan Review Commission, and I was Vice 
Chair of that Commission and then later acting Chair. 

When we were through, we had about a three-and-a-half 
year budget. I was appointed to CSU Board about nine years 
ago. After a year, I became Vice Chair. I was Vice Chair for 
couple of years and then I was Chair for two years and headed 
all the major committees. This is my first reappointment. 
Total time about twelve years. 

CHAIRMAN LOCKYER: How much time does it take, a week 
or month or whatever, to serve on the Board? 

MR. CAMPBELL: That's a good question. A great deal. 
If I'm chairing a presidential search, it can take eight days a 

CHAIRMAN LOCKYER: Hopefully, you don't have to do that 
too often. 

MR. CAMPBELL: I just chaired San Diego and also San 
Jose . 

1 CHAIRMAN LOCKYER: For the campus itself? 

2 MR. CAMPBELL: For the campuses, and that does take a 

3 lot of time. 

4 But normal -- I think normally, at least a week a 

5 month. 


7 MR. CAMPBELL: A month. 

CHAIRMAN LOCKYER: In the years you've be there, what 

9 was the toughest decision? Any that stand out? 

10 MR. CAMPBELL: The toughest decision was probably the 

11 time when we changed Chancellors. That was the toughest 

12 decision that we have had to make. 

13 CHAIRMAN LOCKYER: Partly getting rid of the old one 

14 and then hiring the new one? 

15 MR. CAMPBELL: Correct. It was a time when our Board 

16 had to rethink who we were and what we wanted to see this system 

17 be. 

18 CHAIRMAN LOCKYER: You may well have seen, I forget if 

19 it was the Sacramento Bee; I think it was. There was a rather 
complimentary article in the last day or two, sort of a 

21 comparison of the relative calm around your Board in upper 

22 levels of governance relative to the UC system. 

23 So, it seems like somebody's done something to maintain 

24 quietude. 

25 MR. CAMPBELL: I always appreciate those articles when 

26 they're positive, yes. I've read the other kind. 

27 CHAIRMAN LOCKYER: What would you anticipate are the 

28 major challenges of the next few years? 

MR. CAMPBELL: I sense that we're back on a firm -- 
somewhat firm footing financially. 

I would personally like to see us be able to compensate 
our faculty and staff more. I think they've gone four-five 
years without adequate compensation. 

And I still think that one of the largest challenges 
that we face is completing the reinvention of how we deliver 
education in this new economic environment. I think that's our 
real area that's going to significantly make a difference to us 
over the next ten years. This started three-four years ago, and 
I think we're halfway into it. I think how we do in that area 
will determine the quality of faculty we can hire, which is 
maybe the single most important ingredient. 

CHAIRMAN LOCKYER: Are there questions from Members? 
Senator . 

SENATOR PETRIS: I'm interested in the fee structure 
and financial aid for the students. Somewhere along the line, 
Cal State decided, the trustees, that they were going to charge 
one-third of some figure representing the cost. Students would 
have to pay one-third. That was never done by statute or 
authorized by the Legislature. 

I'm wondering how they arrived at that? Can you 
enlighten me on that? 

MR. CAMPBELL: My perception is that we, about four or 
five years ago, were faced with a real reduction in state 
support, and at the same time had to deal with the whole issue 
of our fee structure. There were a lot of surveys done by CPEC 
and others, trying to allow some type of a working formula that 

got our institution back to being one where there was some type 
of predictable annual increase, instead of jumping all over the 
board, as we had done that for two years. That policy was a 

4 result of that type of thinking. 

5 I think we're really -- my personal -- I'm not for one 

6 that believes in higher fees because the fees restrict access. 

I don't think that's our mission. It isn't our mission. We've 
raised our aid significantly. When we first had our fee 
9 increase, the large one about four years ago, Dr. Hampton and 

10 myself reached a compromise with Barry, whereby a third of any 

11 of the increases we had would be tied directly to student aid. 

12 And as a result, we've increased that substantially. 

13 This year and last year, with the help of the 

14 Legislature, we've been fortunate in being able to not have 

15 these fee raises, so, hopefully we will be able to keep it in 

16 the norm. 

17 I think I was looking at this about a week ago. After 

18 we had gotten through this real time of uncertainty in 

19 California, our fee structure still at the lowest in the United 

20 States. We're still down at the bottom. I think there's only 

21 one institution that I know of in Texas that might even be 
lower. So, I hope that we can keep it as low as we can. 

23 SENATOR PETRIS: That's your policy? 

24 MR. CAMPBELL: Yes, it is my policy. - 

25 SENATOR PETRIS: Well, I'm glad to hear that. It's 

2 6 nice to know that we're at the lowest. I think we always have 

27 been. 

28 MR. CAMPBELL: Always have been. 

SENATOR PETRIS: That's our secret to having our system 
accessible to the largest number of qualified students at both 
the UC and Cal State. 

How do you read the rest of the board? Are they of the 
same sentiment? 

MR. CAMPBELL: Absolutely, absolutely. We worked very 
hard this year to try to do what we could in helping to receive 
extra funds from the Governor's budget to supplement that. 

I think now that we've done it, though, the real 
problem, as I mentioned earlier to Senator Lockyer, is that we 
need to look at some of the faculty compensation and the staff 
compensation issues. 

SENATOR PETRIS: Apparently we haven't been too helpful 
to you in the long haul. In '93, the Legislature established 
another fee for the second time around. If you already have a 
Bachelor's degree, you come back for more study, you get hit 
pretty hard on the fee. That resulted in a lot of students 
dropping out. They're not coming back in. 

Is that still a problem? 

MR. CAMPBELL: I think it's a problem. This is a 
personal observation in people that change careers. I think 
today a lot of people that graduated maybe fifteen years ago 
decide they want -- they have no future in their current 
industry, and they go back to recareer, whether it be nursing or 
some other area that there might be a perceived demand, have 
more problems than they would have before. It certainly cuts 
down on the ability to recareer. 

SENATOR PETRIS: Kind of gives a message that you get 

1 one shot at it. You're not welcome to come back. 

2 MR. CAMPBELL: Well, there is some thinking also that 
when the student is younger, it's harder to get through the 

4 first time, and at least they have their degree and are able to 
make more of a living, and are maybe able later on to pay a 

6 somewhat hire fee. 

SENATOR PETRIS: I'm sure a lot of the students, I 
don't know what the latest studies, if there are any, show, but 

9 students are pretty young when they first start out at Cal 

10 State, even though the average age is higher than the UC. But a 

11 lot of them are bewildered about what they're going to study. 

12 you're looking at one of them. I'm not sure I went into the 

13 right field yet. 

14 When I was at UC, I wound up being a journalism major, 

15 and I studied that very hard. Then I went to law school, and I 

16 haven't worked one day as a journalist, much to my regret, 

17 sometimes to my regret. I don't regret what I did afterward. 

18 I'm thinking of the flexibility and the openess, and a 

19 sense of having students feel welcome to come back without 

20 getting socked with this enormous additional fee. 

21 Of course, that's our doing, not yourself. 

22 Do you believe the Trustees would prefer to do without 

23 that? 

24 MR. CAMPBELL: I can't speak for all of them, but I 

25 would. I don't think it's a significant income generator as 

26 much as it is a deterrent to people that want to recareer. 

27 SENATOR PETRIS: But it has had some impact on the 

28 careers of students. 

MR. CAMPBELL: I don't know the numbers. My wife is 
currently at nursing school at age 54 at Long Beach State, so I 
see the students through her eyes. That's where I see it. 

SENATOR PETRIS: Well, that's pretty accurate, coming 
from a student, at least that one campus. 

CHAIRMAN LOCKYER: Senator, may I pop in. 

Why don't you bring us up to date on the affirmative 
action issue at the State University system. I know there's 
been sort of a broad executive order from the Governor's Office 
which, as I understand the way this works, the system can accept 
or not . 

Anyhow, what's happening in that area? 

MR. CAMPBELL: Well, as I recall the letter, it 
requested that we review our policies and make certain changes, 
and we did that. We went through, and I think it was about six 
weeks later, received a book, three-four inches thick. It tried 
to sort all out all those areas where there could be some area 
of concern in response to the letter. 

Some programs are state mandated. Contractors, you 
know, small minority contractors, there's some federal law 
involved. It's kind of a lot of legalese. 

But in general, the thing that I'm confident in is that 
we didn't have racial based choices to begin with in admissions 
policies, or we never did have a quota system. And so, there 
was really nothing, after we finished the review, that really 
applied to us. 


SENATOR AYALA: Senator Petris, have you finished? 


1 SENATOR PETRIS: I wanted to go into another area, but 

2 I'll wait, that's okay. 

SENATOR AYALA: I just was going to follow up on 

•'< Senator Lockyer on affirmative action. 

The Governor has signed that and required all state 

6 agencies to comply with the affirmative action of his views, and 
it's not binding on you folks, but do you have plans to comply 

8 with that order? 

9 MR. CAMPBELL: It's my feeling that we're in 

10 compliance. 

11 SENATOR AYALA: You will comply? 

12 MR. CAMPBELL: Yes, we will, or we have, or we are. I 

13 think it's all the same. 

14 We have an admissions standard in our institution that 

15 takes the top third. That's a Master Plan produced formula. 

16 CPEC callibrates that every so often, and we produce a pamphlet, 

17 and it's distributed. And that's how we base our admissions on. 

18 There's not a racial question involved in it. So, I 

19 don't think the kinds of issues that at least I've read about 

20 that have faced the UC system have faced our system. 

21 SENATOR AYALA: On another area of remedial instruction 

22 in English. I understand that you discussed that quite 

23 thoroughly last week, and the idea was to discontinue the 

24 remedial courses for some of those students. 

25 I understand about 50 percent of the students entering 

26 the CSU are short on reading English, and they need some help. 

27 Do you folks intend to discontinue that program? 

28 MR. CAMPBELL: No. What we were concerned about was a 

continuing increase in the need for remediation among our 
entering students, and it reached -- blended between math and 
English a percentage that was in excess of 40. 

We've just spent about ten months looking at the 
question and seeing how our system fit in that, and how we could 
help . 

The answer to the question is, after looking at it and 
holding some hearings, and spending a lot of time with the K-12 
people, we understood the question well enough to know what 
areas we could -- what steps we could take as an institution 
that would help, and work with Delaine Eastin and the 
Superintendent and the K-12 to see what steps they could take 
with a joint effort. 

And then, from everything from doing a better job in 
our education of our teachers, we produce probably 70 to 75 
percent of all the teachers in the state, to helping to review 
our testing. When we give our tests, there's a lot of types of 
things we can do to get at the remediation issue. 

We can also be certain that our -- we're spending a 
year reviewing our standardized testing to be certain that the 
tests we give are appropriate and should be doing the job 
they're doing. 

It's our intent that, working with the K-12, that we 
can be effective in allowing the high school students to have 
less of a need for remediation. Our whole goal is to be able to 
educate more students at the end of this process. 

And no, we are not stopping any courses dealing with 
remediation. There's no -- no, the answer's no. 


SENATOR AYALA: I understand that if this goes through, 
by the year 2001, all remediation will cease except, according 
to what I'm reading here, it will continue for affirmative 
action programs for unrepresented minorities, athletes, artists, 
and musicians under that proposal. 

If you're going to start remedial for some students but 
others will not be, I don't understand what you're doing here. 

MR. CAMPBELL: I'm really at a loss. We're not 
changing any current policies at all. 

SENATOR AYALA: By the year 2001, I have here. 

MR. CAMPBELL: Way back about ten months ago, one of 
the proposals that was brought up at a board meeting was, is 
there a way that we can end the need for remediation in five 
years, which I believe was 2001. But after the ten-month 
process, that original policy was thrown away, and there's no -- 
that's not applicable anymore. 

SENATOR AYALA: My question was, it'll be terminated 
for everyone except those students admitted under affirmative 
action programs for unrepresented minorities, athletes, artists, 
and musicians . 

MR. CAMPBELL: I'm just not aware at all what — 

SENATOR AYALA: You're not aware at all, by 
Mr. Pesqueira? He made that proposal, I understand. 

MR. CAMPBELL: He may have made that proposal, but 
that's the one that we didn't accept. It has not been 

SENATOR AYALA: If it is, it's going to be selective? 

MR. CAMPBELL: There's nothing going to be selective. 


Nothing will be done. Nobody will be affected. 

SENATOR AYALA: Thank you. 

MR. CAMPBELL: Thank you. 

SENATOR PETRIS: On that same subject, I think it comes 
up on just about all the nominees for the Board. 

The Cal State system is the one that turns out most of 
our teachers. You know, we used to call it the Teacher's 
College system. Yet we continue to have, you know, we do a good 
job, I hope, at the Cal State level to turn out all these 
teachers. They go and teach in our schools. 

And yet, large number of the students still need some 
remedial work. There's a gap there, it seems to me, that we 
ought to be able to fill somehow or another. 

The problem's at the K-12 level. It's not your level, 
but you have to inherit the problem and try to correct it. 

Is there any ongoing communication between the 
university system and the high school people, or junior high, on 
this particular problem? 

MR. CAMPBELL: Yes. I think that was one of the more 
exciting things that I've seen happen in education in the last 
12-13 years is the relationship that we've created with the 
Superintendent of Public Instruction. 

When I worked on the Master Plan, here we were, 
reviewing the different institutions and working with the 
coordinating boards, and the one thing I remember very vividly 
is, nobody talked to anybody. There was a round table 
somewhere, and the Legislature was the body that sat down and 
was able to coordinate a little bit. And CPEC had that job, but 


they were usually only active in deciding where to build new 

2 institutions. 

But today, I think there's a -- it's the first time 

4 I've seen it, some ongoing, very deep dialogue between our 

institution and Delaine Eastin and that Board. We've had some 

6 joint meetings. We've gotten to know each other, and their 

policies are jointly being created, the testing. 

8 I think we'll be able to come out of this with some 

9 standardized testing that both institutions concur with, so 

10 there's no bickering on whether the standards that we set are 

11 going to be right or wrong. 

12 If we both accept the standards and implement them, get 

13 tests starting from the third grade through, I think we can 

14 create a system whereby we can accomplish something. 

15 No, I'm optimistic about it and encouraged. 

16 SENATOR PETRIS: "It's not asking too much that we have 

17 a system that sends young people into the world after the 

18 twelfth grade who can write -- who can read and write. 

19 You know, we get complaints from employers. They can't 

20 fill out the applications. It's very distressing at times. 

21 Do you have a time table, 2001, is that what you're 

22 talking about? 

23 MR. CAMPBELL: Well, that's the beginning of it. 

24 What we've done is taken a period of roughly a decade 

25 and tried to implement programs. The first one that we're going 

26 to do is the testing area, and we hope we'll be complete — we 

27 will be complete with that within about eleven months. We want 

28 to agree upon some standards of testing, and then we'd like to 


1 see the other -- the K-12 start to agree on some standards for 

2 testing. 

3 I think once we have the math test, we're going to give 

4 these tests to students before they graduate from high school. 

5 One of the problems now is, we don't do that. For instance, the 

6 math test should be given at the end of the eleventh grade when 

7 they finish taking math. We ask them to take it two years 

8 later, and I'm not so certain that I'd want to take that test 

9 two years after I had calculus or advanced algebra. 

10 ; I was a lawyer also. I think I took that route to avoid 

11 math. But I think -- 

12 ■ SENATOR PETRIS: I wouldn't want to take it the day 

13 after school closes. 

14 | MR. CAMPBELL: I think there's a lot that we can do 

15 | that'll help. But I think mainly we need to have standards, 

16 and we need to agree what the standards are, and we need to 

17 enforce the standards. I think that's the way I look at the 

18 j problem. 

19 SENATOR PETRIS: There's been a lot of talk of that. 

20 We don't seem to have reached that point yet for some reason or 

21 another. I don't know whether it's lack of action on our part, 

22 or we're not being prodded and guided sufficiently by the 

23 educators or what. It's very disappointing and very 

24 distressing. 

25 | It seems is to me the absolute minimum we should expect 

26 | is that everyone that comes out of high school can sit down and 

27 | write a decent letter, fill out an application. Otherwise, 

28 i they're dysfunctional the rest of their lives. 


Do you feel optimistic about the results of what is 
happening now? 

MR. CAMPBELL: I feel very optimistic about it from our 
side . 

I can't -- I don't know what the state faces 
financially. I don't know how we are going to resolve the 
influx of students. It's going to overwhelm people. Those are 
issues I feel I don't have control over. 

But as far as the academic side of the house, and the 
kinds of policies that I think we need to have to implement 
standards, I think we're on the right track, and I think it'll 
be accomplished. 

SENATOR PETRIS: I hope so. Thank you. 

CHAIRMAN LOCKYER: Other questions. 

Anyone present who would wish to make any comment? 
Yes, sir. 

MR. CRIST: Very briefly, Mr. Chairman, Members. 

My name is Bill Crist. I've been privileged to be a 
professor of economics in the State University since 1969 and 
have been the president past, and am now Chair of the 
Legislative Committee of the California Faculty Association. 

As you know, we represent all of the faculty at the 
California State University under the law. 

I would like to speak to the confirmation of Trustee 
Campbell. It's important to the faculty that they be able to be 
in communication with individual trustees. As some of you know, 
in past years we've had some periods of tough sledding. 

I would like to report that Trustee Campbell has been 


most open to us, has made himself available for discussions. 

We would like to see the trustees be even more open 
during periods of negotiations between the faculty and the CSU. 
Sometimes even the trustees are not totally in the loop as much 
as they might be, with mid-management people doing their job, 
and sometimes, though, interfering with the smoothest kind of 
progress and operation. 

But we have no bad news to deliver on Trustee 
Campbell. We believe that he's done an admirable job, and we're 
certainly in supports of his reconfirmation. 

CHAIRMAN LOCKYER: Thank you, Mr. Crist. Also, we'll 
take this opportunity to congratulate you on your re-election as 

MR. CRIST: Thank you. I wear that hat some of the 
times . 

CHAIRMAN LOCKYER: You're wearing lots of 
hats . 

MR. CRIST: We do look after your pension, sir. 

CHAIRMAN LOCKYER: The haberdasheries are pleased with 
your service. Thank you. 

MR. CRIST: Thank you very much. 


What's the pleasure of the Committee? 

SENATOR BEVERLY: Move we recommend 

CHAIRMAN LOCKYER: We have that motion before us. If 
you'll call the roll. 

SECRETARY WEBB: Senator Ayala. 



SECRETARY WEBB: Ayala Aye. Senator Lewis. Senator 
Petris . 


SECRETARY WEBB: Petris Aye. Senator Beverly. 


SECRETARY WEBB: Beverly Aye. Senator Lockyer. 



CHAIRMAN LOCKYER: Let's leave it open so Senator Lewis 
can record. 

Denny, good luck. 

MR. CAMPBELL: Thank you, sir. 

CHAIRMAN LOCKYER: Okay, Ms. Fallgatter is the next 
appointee . 

Good afternoon. Do you wish to start with any comments 
at all? 

MS. FALLGATTER: Maybe I would just be brief. 

You've been able to ask Denny all those questions. I'll 
just give you a fast run-down. 

CHAIRMAN LOCKYER: Did you hear any of his answers you 
disagreed with? 

MS. FALLGATTER: No, as a matter of fact, I agreed with 
everything that he had to say. 

CHAIRMAN LOCKYER: Then we don't need two Trustees. 

[Laughter. ] 

CHAIRMAN LOCKYER: Please, go ahead. 


1 MS. FALLGATTER: Thank you very much. Denny and I were 

2 here just about eight years ago, and we've seen a lot of 

3 transformation in our system. When we first came on the board, 

4 it wasn't as cohesive as it is now. As he mentioned, we went 

5 through removing one chancellor, and being very, very fortunate 

6 to find Barry Munitz, who's running our -- and leading us 

7 today. 

8 In that period, there were times in Sacramento where we 

9 didn't have such a good image. And today our image is good. 

10 Our ability, our cohesive board, our leadership with our 

11 administration, our faculty, our staff, our students, it's 

12 marvelous. And I would like to serve another term on this board 

13 because it's like we've created the stability level, and now we 

14 can go further with helping to educate populous of the State of 

15 California how important and what a priority education should 

16 be. 

17 Thank you. 

18 CHAIRMAN LOCKYER: At the risk of prejudicing Senator 

19 Petris's perspective, I want to add to your list of supporters 

20 that we've indicated on the record. George Marcus prevailed on 

21 me last Thursday night when we had dinner to mention the fact 

22 that he's a strong supporter and advocate for your confirmation. 

23 SENATOR PETRIS: That has no impact on me whatsoever. 

24 I withdraw all the questions I had prepared. 

25 MS. FALLGATTER: Thank you, Senator. 

26 CHAIRMAN LOCKYER: What's your view about what was the 

27 hardest decision you were forced to confront while you've been 

28 on the board? 

1 MS. FALLGATTER: I would agree with Denny. When we 

2 were going through that period on the board where the leadership 

3 wasn't the best that it could be, it was difficult to be able to 

4 stand up and say we need to make a change. 

And I would say that what was very interesting about 

6 our board, too, is even though as turmoil as we were in at that 
point in time, we were able to also go out and risk a little bit 

8 with hiring Barry Munitz because it wasn't the normal hire you 

9 would do, since he was coming out of, at that time, the private 

10 sector. I think that we can all see what a wise choice that 

11 was. 


13 SENATOR AYALA: This morning when we visited, I asked 

14 you if you had a position on affirmative action. You responded 

15 that it hadn't surfaced yet at your board; therefore, you didn't 

16 have one. 

17 But it says on June 1st of '95, the Governor signed an 

18 executive order that required all agencies to comply. And 

19 apparently the CSU has not decided to do that at this point, 

20 although the Governor would like you to do it. 

21 What is your position on affirmative 

22 action? 

23 MS. FALLGATTER: Okay, number one, in our system we 

24 have no race-based programs. So, that compliance doesn't fall 

25 over us at any level. 

26 We have great programs in the fact that we all believe 

27 in the equity of opportunity for individuals, and we have our 

28 out-reach programs, and we do everything we can to ensure that 


we have good pools in our universities. 

And then also, you know, we take the top third of the 
high school graduates out of the State of California, and we're 
just more than actively out there pursuing to make sure that we 
can get every student that wants an education in California into 
our system. 

SENATOR AYALA: It hasn't surfaced at your board level, 
but I think it will. Your position is that you are sensitive to 
the problem? 

MS. FALLGATTER: My position is, I believe totally in 
the Master Plan, which is the access, and the af fordability, and 
the quality of education. And that's a commitment that, since 
the Master Plan was established in I960, that the CSU, even 
though we've gone through turmoil as far as economics has gone, 
we have never lost that commitment to the access, and the 
af fordability, and the quality. 

SENATOR AYALA: Half of the students, as I indicated to 
the other member, at CSU need remedial English instruction. My 
understanding is that it was discussed in one of your January 
meetings to phase that out by the year 2001? 

MS. FALLGATTER: You know, what we did is, about ten 
months ago we had a board meeting in which that policy was 
brought to the floor of the board. We have a very interesting 
board in that we never act real quickly. We want to have an 
information item, spend some time researching it, and bring it 
back as an action item. And that's exactly what we did with 
remedial education. 

And we took it even a step further. Ralph Pesqueira, 


whose committee went throughout the State of California and had 
different meetings in all major cities throughout the state, and 
we had a meeting with the Legislature up here that you were all 
invited, and during that period of give and take and listening, 
we came to the conclusion that that year 2001 really wasn't a 
6 feasible thing to try to accomplish, because you're talking 
about dealing with K-12 plus higher education, and trying to 

8 formulate this all together. 

9 So, what we did is, we revised our policy to where, by 

10 the year 2001, our goal is to eliminate the need by ten 

11 percent. By the year 2004, it's to eliminate the need by fifty 

12 percent, and then, hopefully, by the year 2007, to eliminate the 

13 need for it by ninety percent. 

14 And we're working very closely with all the segments in 

15 education so that together, we can make sure that those children 

16 that are coming through the pipeline today, and K-3, especially 

17 when you learn to read and write, that we really put the 

18 emphasis there. 

19 SENATOR AYALA: But we're talking about freshman coming 

20 in. How do you intend to remove the need -- 

21 MS. FALLGATTER: Well — 

22 SENATOR AYALA: It's up to the high school. 

23 MS. FALLGATTER: This is why the years. This is why 

24 the ten percent, to the fifty percent, to the ninety percent. 

25 It's going to take years. It's going to take a decade probably 

26 in order to ensure that no child is a victim of what's been 
occurring at this point. That we really get in and make sure 

28 that we teach these kids correctly in those beginning years, 


1 because it's going to influence the rest of their lives. 

2 SENATOR AYALA: According our statistics, it shows that 

3 those students that need remedial instruction in English take 

4 longer to graduate. It takes a little bit longer to do that. 

5 I still don't understand how you're going to get the 

6 high schools to get these young students to graduate in order to 

7 pass the English entrance exam at Cal, for instance -- 

8 MS. FALLGATTER: That's an interesting question. And 

9 what we have done, because you're absolutely correct, and how 

10 are you going to take a whole system and change it? 

11 We have put together an implementation committee that 

12 is headed by one of our presidents from Stanislaus, Marveline 

13 Hughes. And she has got on her committee different 

14 representatives from all of the different segments in education, 

15 and together they are in the process now of putting together a 

16 plan, a task force plan, that will come back to the board and 

17 ? say, this- is how we feel we can implement this policy in order 

18 i to ensure that those children learn. 

19 SENATOR AYALA: Is the Superintendent of Instruction 

20 part of your board. 

21 MS. FALLGATTER: Yes, she sits on our board, and she's 

22 also totally in agreement with the way that the board came out 

23 with this decision and was at our board meeting last week when 

24 we voted on this policy and voted with us. 

25 SENATOR AYALA: Thank you. 

26 CHAIRMAN LOCKYER: Other questions, Senator? 

27 SENATOR PETRIS: Just one area, and that's on fees, 

28 student fees. 


1 I'm a little confused as to the CSU system of tackling 

the fee problem. I'm told sometimes only we have the right to 
raise the fees, but the board does have some leeway, too. In 
'93, they set a goal to make it equal to a third of the cost of 
tuition, of instruction, and that seems to be established as a 

6 goal since '93. 

In the Legislature, we haven't done it. I don't know 
how close you are to that goal. I know there's been about 

9 eighty percent increases since '92 or so, which is rather 

10 enormous. Fortunately, they started out with a very low base or 

11 the fees would be even worse than they are now from the 

12 student's standpoint. 

13 Can you comment on the fee structure as it is now, and 

14 whether the plan is to continue each year to increase it. 

15 I have in mind that the board, in its last increase, 

16 appealed to the Governor to back-fill so that it wouldn't be 

17 necessary. I think that happened once, but it didn't happen 

18 each time. 

19 Where is board now on the fee situation as one of the 

20 sources of funding for operating the system? 

21 MS. FALLGATTER: Well, to be very honest with you, I'm 

22 a graduate San Diego State. When I went through my education, 

23 my fees were $150 a year. 

24 Today, our student fees are about $1750 a year. 

25 Obviously, in my perception, with the economy the way 

26 it is in the State of California, it seems doubtful to me that 

27 we would be able to roll back fees, but is there a way to try to 

28 cap them? We would hope so. 


I don't believe that there's a person on our board that 
wants to increase the fees. And I can speak from a personal 
point of view. 

I'm a single mother with five boys. They start college 
in another two years. I'll have a decade of children in 
college. I don't want to raise those fees either. 

But we've got to find a way to be able to assure that 
quality of education for the citizens of the State of 
California. When you speak about the one-third, we're not 
basically at one-third. That was a situation that came up via 
the CPEC and our research on would that be a way to be able to 
let the parents know exactly where the dollars are going to be 
so that they would always know it's going to be a third of what 
it's going to be costing for education, so that they could plan 
for their students. 

The Legislature did not agree with that idea, which I 
think it's marvelous that we're being able to keep fees down to 
lower level. We have got to find a way to work together to 
ensure that there's some way that we can handle that. 

Right now, with our budget at about around $2 billion, 
we have actively gone out, Senator, in our search for presidents 
to make sure that one of those qualities they have is the 
ability to fundraise, to walk in and close an individual to give 
money back to our university system. 

And we've got a committee called Institutional 
Advaancement which is just full-bore out there in the trenches, 
trying to make sure that we raise money in order to be able to 
accommodate the quality that we're used to. 


1 SENATOR PETRIS: How is it doing? 

2 MS. FALLGATTER: It's doing marvelously well. 

3 SENATOR PETRIS: How well? 

4 MS. FALLGATTER: About a half a billion dollars this 

5 last year, and that's in grants and private. 

And then to take -- our presidents are absolutely 
marvelous. We have 22 campuses. And the personal relationships 
that our presidents build with the people and the individuals in 
their communities, for them to then be turning around and giving 

10 them a million dollars, five million dollars to the university, 

11 it's marvelous because we've not had to compete like that as the 

12 private universities have, so we're kind of new on the block, 

13 but we're doing well. 

14 SENATOR PETRIS: Well, you have enormous pool, you 

15 know. Far more graduates from the state system than from the UC 

16 system, just more campuses- and more people. 

17 I'm happy that you're tapping that. Are you looking at 

18 larger amounts each year? 

19 MS. FALLGATTER: Yes, we sure are. 

20 SENATOR PETRIS: It isn't just first time enthusiasm 

21 that brings in that money. 

2 2 MS. FALLGATTER: No, it's much more than that. And 

there's another thing that we're doing along the same lines 

24 that's not so economic but more for the philosophy in education 

25 of the state. We're forming an organization called Ambassadors 

26 for Higher Education. That's to form a grass-roots organization 

27 throughout the state of California that, really, the issue is 

28 that education needs to be a priority. 


SENATOR PETRIS: Is that message getting 

MS. FALLGATTER: We're just in the process of forming 
it, and I know you're going to be wanting to be a member of it, 
Senator. It's a great organization. I'm serious. 

SENATOR PETRIS: I'd like to apply for one of those 
scholarships myself. 

Thank you. 

CHAIRMAN LOCKYER: Many of us have thought he should be 
an ambassador over the years. 

This is general information more than a statement of 
your beliefs. Has there been any discussion that's reached the 
board on, it has three different names, I think, but 
privatization, or contracting out, or out sourcing? Has there 
been that kind of -- 

MS. FALLGATTER: From my point of view, and I'm not in 
administration everyday, but I can give you just the knowledge 
that I have. 

The only contracting out that I believe in my 
perception that we have incurred was the gardening at Long Beach 
State. And it was handled very well. President Maxim went and 
sat down with the unions. They went and sat down and figured 
out what were we able to economically do under that 
circumstance? What was the contracting out bid? How could we 
work through it? Worked through it amazingly well to where we 
have no repercussions from it at all. 

That's the only situation that I'm aware of at this 
point . 


CHAIRMAN LOCKYER: So there isn't a sort of active 
policy or whatever currently? It's just at the discussion 

3 stage? 


CHAIRMAN LOCKYER: Other questions from Members. 
6 What's the pleasure? 

SENATOR BEVERLY: Move we recommend confirmation. 

CHAIRMAN LOCKYER: Okay, the motion mover has spoken 
9 Let's call the roll. 

10 SECRETARY WEBB: Senator Ayala. 


12 SECRETARY WEBB: Ayala Aye. Senator Lewis. 


14 SECRETARY WEBB: Lewis Aye. Senator Petris. 


16 SECRETARY WEBB: -Petris Aye. Senator Beverly. 


18 SECRETARY WEBB: Beverly Aye. Senator Lockyer 


20 SECRETARY WEBB: Lockyer Aye. Five to zero. 

21 CHAIRMAN LOCKYER: Good luck. Keep up the good work. 

22 MS. FALLGATTER: Thank you very much. 

23 CHAIRMAN LOCKYER: We left the roll open on the 

24 previous, so if you want to call the absentee on that one. 

25 SECRETARY WEBB: Senator Lewis. 

27 SECRETARY WEBB: Lewis Aye. That's five to zero for 

28 Mr. Campbell. 


CHAIRMAN LOCKYER: Mr. McCarthy, Industrial Welfare 
Commission. How are you? 

MR. MCCARTHY: Fine, thanks. Good afternoon. 

CHAIRMAN LOCKYER: Do you want to start with any 
comments, tell us about yourself? 

MR. MCCARTHY: I made a brief statement. Perhaps I'll 
just take a couple minutes to give you some background on the 
Commission and what we've been doing. 

First of all, I was appointed by Governor Wilson a 
little over a year ago. 

Let me talk about the Commission. Among the various 
responsibilities the Commission handles, in fact, which it's 
required to do, is to investigate and determine where 
appropriate various issues affecting the conditions of labor in 
the area of wages, health, and welfare. 

Since my appointment, the board has devoted most of its 
time to reviewing the current minimum wage in the state, which 
we are obligated to do at least once every two years. 

The other major responsibility we've undertaken is to 
begin, in fact, we've really just begun, to consider the 
proposal to change current overtime pay to conform to federal 
standards, which, of course, would cause overtime pay to kick in 
after forty hours a week rather than after eight hours work in a 
single day. And I know the Legislature here has dealt with that 
issue separately. 

As I say, we've just barely begun to look at that. No 
decision has been taken on either issue. 

With regard to the minimum wage, five public hearings 


1 have been held by the Commission across the length and breadth 
of the state, at which members of the public, as well as 
representatives from labor and business have testified on the 

•; issue. Also, numerous studies have been solicited, many 

5 documents and reports obtained, and so on. 

On the basis of the facts so far gathered and obtained, 
the Commission has voted for the appointment of a wage board on 

8 the basis that the minimum wage may be inadequate. 

9 With regard to the issue of overtime pay, as I 
mentioned, we've just barely begun to look into the issue, and 

11 so far, in fact, have only held one public hearing. Other 

12 public hearings are scheduled in the next several months across 

13 the state. 

14 Let me just take a brief moment to talk a little about 

15 my background, and then answer any questions or provide any 

16 information to you that I- can. 

17 For most of my career, I've been a college teacher. 

18 Almost twelve years ago I moved to California, and during that 

19 time, I served for several years as Governor Deukmejian's 

20 Director of Community Relations, as well as his Director of OPR 

21 for the last several months of his administration. 

22 Following that, I was with the U.S. Department of 

23 Education as the Secretary of Education's regional 

24 representative until January, 1993. 

25 Since then, I've returned to teaching. Last year, I 

26 was a visiting faculty member at U.C. Irvine, and currently I 

27 teach at California Baptist College in Riverside. 

28 CHAIRMAN LOCKYER: What do you teach? 


1 MR. MCCARTHY: I teach government and political 

2 science. I enjoy it thoroughly. 

3 With regard to my background, let me in a general way 

4 say that I honestly feel that I have the advantage of being able 

5 to view, I think, these issues from several vantage points, and 

6 I think with an open and fair mind. My government and academic 

7 experience has helped in obvious ways. 

8 On a more personal level, I grew up in a union 

9 household, as they used to describe it. My father was a union 

10 official in a large plant near home for virtually his entire 

11 working life. Being Irish, union concerns and affairs, as well 

12 as local politics, was the evening fare as much as corned beef 

13 and cabbage, which was a lot. 

14 CHAIRMAN LOCKYER : But you wound up an R and not a D. 

15 | Don't explain it. 

16 MR. MCCARTHY: I made the transition. Some say wisdom, 

17 some say cholesterol. 

18 But as I say, it was the result of my father's union 

19 strength that my family was able to have moderate but a decent 

20 and comfortable life, as well as the fact that I had a job was 

21 able to work my way through college. I received a good 

22 education, for which I'm thankful. 

23 So in short, I believe I have the ability and the 

24 sensitivity to deal with the issues that come before the 

25 Commission, with an understanding of the larger issues and 

26 concerns, as well as human impact of Commission decisions on 

27 working men and women through California. 

28 I'll see if I can answer any questions or provide any 


1 information. 

2 CHAIRMAN LOCKYER: I guess one of our sensitivities has 

3 been for the position of public member. 
•; MR. MCCARTHY: Yes, sir. 

CHAIRMAN LOCKYER: Being the kind of a key swing vote 
6 between the labor or business representatives, that we get a 
sense of neutrality or objectivity with respect to that role. 

8 I think the only way maybe to ask it is, my 

9 understanding of the law is that it requires the Commissioners, 
all of them, really, to look out for the general welfare of 

11 employees. 

12 Does that seem like an appropriate mission and one 

13 that -- 

14 MR. MCCARTHY: I think that's the ultimate mission of 

15 the Commission. I think, obviously, you have do that from the 

16 point of view of the larger interest of everyone in the state as 

17 well. 

18 As I've quickly found out, for any problem or any 

19 issue, there's rarely one solution that keeps everyone happy, 
which, I guess, is the first lesson of politics, I guess, for me 

21 in understanding that. 

22 So it's really trying to balance all of that that I 

23 find to be, you know, the most challenging, and the most 

24 important part of being a public member. 

25 CHAIRMAN LOCKYER: Other questions from Members. 

26 I should ask if there's anyone present who wishes to 

27 comment. If not, Senator Ayala. 

28 SENATOR AYALA: I have a question. 


A number of prominent Calif ornians, ' including Peter 
Ueberroth, have asked to raise the minimum wage. '88 was the 
last time it was done. I think the cost of living has decreased 
the buying power of those folks at that level. 

Do you have think position as to what we should change 
and to what extent? 

MR. MCCARTHY: Well, one reason I voted to call the 
wage board, again, on the grounds that there may be a need for 
an adjustment. 

It is exactly what you said, Senator. Clearly, there 
has been a decline based on inflation of probably around 20 to 
25 percent. 

SENATOR AYALA: This is the Commission that can do 

MR. MCCARTHY: Yes, that's correct. 

SENATOR AYALA: Is there a move afoot to increase the 
minimum wage? 

MR. MCCARTHY: Well, there is. In fact, I believe the 
AFL-CIO is sponsoring a state initiative to do that as well 
through the ballot in the next election. They're gathering 
signatures to do that. 

SENATOR AYALA: Is that also true of prevailing 

MR. MCCARTHY: We have no jurisdiction over prevailing 

SENATOR AYALA: Thank you. 

CHAIRMAN LOCKYER: Yes, Senator Lewis. 

SENATOR LEWIS: Are you currently a resident in 


1 Sacramento? 

2 MR. MCCARTHY: My home is in Sacramento, but I'm 
working in Riverside, keeping Southwest Air very profitable. 

•; SENATOR LEWIS: That was my question. 

CHAIRMAN LOCKYER: Other questions, Senator Beverly? 

SENATOR BEVERLY: No questions. 

CHAIRMAN LOCKYER: How about a motion? 

SENATOR BEVERLY: I'm prepared to move we recommend 
9 confirmation. 

10 CHAIRMAN LOCKYER: That will be the order. Let's call 

11 the roll. 

12 SECRETARY WEBB: Senator Ayala. 


14 SECRETARY WEBB: Ayala Aye. Senator Lewis. 


16 SECRETARY WEBB: -Lewis Aye. Senator Petris. 


18 SECRETARY WEBB: Petris Aye. Senator Beverly. 


20 SECRETARY WEBB: Beverly Aye. Senator Lockyer. 


22 SECRETARY WEBB: Five to zero. 

2 3 CHAIRMAN LOCKYER: Thank you very much. 

24 [Thereupon this portion of the — 

25 Senate Rules Committee hearing was 

26 terminated at approximately 2:50 P.M.] 

27 — ooOoo — 































I, EVELYN J. MIZAK, a Shorthand Reporter of 
the State of California, do hereby certify: 

That I am a disinterested person herein; that 
the foregoing transcript of the Senate Rules Committee hearing was 
reported verbatim in shorthand by me, Evelyn J. Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel or 
attorney for any of the parties to said hearing, nor in any way 
interested in the outcome of said hearing. 

IN WITNESS WHEREOF, I have hereunto set my 

hand th 

is /j£_ 


day o 

f A^U 

, 1996. 

Shorthand Reportfer 


Additional copies of this publication may be purchased for $4.25 per copy 
(includes shipping and handling) plus current California sales tax. 

Senate Publications 

1020 N Street, Room B-53 

Sacramento, CA 95814 


Make checks payable to SENATE RULES COMMITTEE. 
Please include Stock Number 291-R when ordering. 


Ucu i^.\c*iu CC, 






ROOM 113 


FEB 2 6 1996 

SA 'O 


3:12 P.M. 





ROOM 113 


3:12 P.M. 

Reported by 

Evelyn J. Mizak 
Shorthand Reporter 










GREG SCHMIDT, Executive Officer 

PAT WEBB, Committee Secretary 

RICK ROLLENS, Consultant on Bill Referrals 

NANCY MICHEL, Consultant on Governor's Appointments 


Bureau of Automotive Repair 
Department of Consumer Affairs 



2 Page 

3 Proceedings 1 

4 Governor's Appointees: 

Bureau of Automotive Repair 

6 Department of Consumer Affairs 1 

7 Background and Experience 1 

8 Questions by CHAIRMAN LOCKYER re: 

9 Status of Enforcement Effort on 

Gross Polluting Vehicles 4 



Obstacles to Getting Program Running 5 

Reasons for Choosing Specific Regions 

for New Program 5 

Estimate of Effectiveness of Program 6 

Hardship Cases 6 

Using Impound Cars 8 

Questions by SENATOR AYALA re: 

Possibility of New Gasoline that 

Is Claimed to Reduce Tons of Emissions 9 

Changing Approach to Problem with 

Cleaner Burning Gasoline 9 

Statements by CHAIRMAN LOCKYER re: 

Mobile Versus Stationary Sources 10 

Reguest for Periodic Updates 10 

Questions by SENATOR LEWIS re: 

Process of Choosing Cars for 

Central Valley Project 11 

Problems with Pulling in Cars That 

Don't Pollute 12 


Motion to Confirm 12 

Committee Action 13 

Termination of Proceedings 13 

Certificate of Reporter 14 

1 P-R-O-C-E-E-D-I-N-G-S ' 

2 — 00O00 — 

3 CHAIRMAN LOCKYER: Rules having a full committee 

4 present, thank you for your presence, Members. 

5 We will start with Martin Keller, Bureau of Automotive 

6 Repair. Howdy. 

7 MR. KELLER: Senator. 

8 CHAIRMAN LOCKYER: Looks like you have maybe some 

9 comments to begin with? 

10 MR. KELLER: If it's the pleasure of the committee. 


12 MR. KELLER: Why, thank you. I'll try to do this as 

13 J informally as possible. 

14 Mr. Chairman and Members, thank you for the opportunity 

15 ; to appear before you. Since the beginning of last year, I've 

16 I had the honor of serving California consumers as the Chief of 

17 ; the Bureau of Automotive Repair in the Department of Consumer 

18 Affairs. 

19 The Bureau has two primary missions. First we protect 

20 ! California consumers who need repairs of their vehicles from 

21 ! fraud. Secondly, we oversee the state's smog check program. In 

22 the process we license some 43,000 auto repair dealers, some 

23 8300 smog check stations, and 15,000 smog technicians. We also 

24 mediate consumer complaints and investigate and seek prosecution 

25 of cases of consumer fraud. The Sears case of several years ago 

26 was but the highest profile example of our work. 

27 In fiscal 1994-95, we worked on more than 33,000 

28 j consumer complaints, facilitated consumer refunds in excess of 

$4 million and initiated 600 civil, criminal, and administrative 

As a participant in the Department of Consumer Affairs 
performance budgeting pilot project, the Bureau has been 
developing market condition assessments to help us target our 
enforcement efforts on the segments of the auto repair market 
where consumers are of greatest risk from fraud. As a result, 
we are now investigating and prosecuting cases of shops ripping 
off both consumers and their insurance providers in the auto 
body and glass repair markets. 

Similarly in the smog program, we have been engaged in 
an aggressive compaign against shops which issue fraudulent smog 
certificates. These illegal certificate mills not only undercut 
the efforts of legitimate smog stations to test and repair 
failing vehicles, they also permit tons of pollutants to 
continue to poison the air -we and our children breathe. 

Our overall responsibility for managing the state's 
smog check program faces new challenges. As a result of the 
1990 amendments to the Federal Clean Air Act and the 1994 
legislation authored by Senators Presley and Kopp and 
Assemblymember Katz and signed into law by Governor Wilson, the 
Bureau has begun implementing a significant enhancement to the 
smog check program. ' 

My challenge over the past year has been to balance the 
different requirements of this implementation. I oversee a 
staff of engineers who have been developing such program 
features as remote sensing and the new smog check test 
protocols . 

At the same time, I've sought guidance from not only 
the test and repair industry, but from leaders of the different 
California communities that will be affected by the new law. 
Maintaining the balance of competing program elements and 
constituencies while getting Smog Check Two up and running has 
been my main focus in 1996. 

This is the third bureau in the Department of Consumer 
Affairs I've been privileged to lead. After two years with the 
Bureau of Electronic and Appliance Repair, and two years with 
the Bureau of Home Furnishings, I've come to recognize that 
effective consumer protection requires active participation not 
only of the regulated industries, but of consumers and their 
representatives. This participation is essential, not just 
because government can only be effective when its stakeholders 
have mutual ownership of its success, but because markets are 
dynamic. Solutions that work today may not be appropriate 

It is my responsibility to ensure that all stakeholders 
have the opportunity to partner with the Bureau to ensure that 
our work is effective, informed, and meets the needs of 
consumers and providers. 

I'll be glad to respond to any questions that you may 
have . 

CHAIRMAN LOCKYER: Okay, thank you. We appreciate your 

I guess mostly I would like to hear more detail about 
the efforts to enhance enforcement for the ten percent or so of 
the automobiles that produce half or more of the emissions. 

1 What's the status of that enforcement effort now with 

the variety of prongs that you have? 

MR. KELLER: The new smog check program is in the 

4 j process of probably an 18-month roll out. The key component to 

which you're referring has to do with government contracted 

6 stations that would test what we call gross polluters, vehicles 

which are emitting at very high levels. 

8 We're in the process of interviewing potential 

9 j contracters and going through the state procurement process that 

10 we expect to finish sometime in April. What we are told by most 

11 of those who are participating in this process is that it's 

12 going to take a number of months to get the regions of 

13 California up and running so that these stations can begin to 

14 test those vehicles as follows: six months after we sign 

15 contracts, the Central Valley region, which would be Fresno, 

16 Kern County and Sacramento Counties; six months after that, San 

17 Diego and Ventura Counties; and then six months after that the 

18 South Coast region of Los Angeles, Orange, and San Bernardino 

19 and Riverside Counties. 

20 CHAIRMAN LOCKYER: When would the first contracts get 

21 signed? 

22 MR. KELLER: We anticipate doing that sometime around 

23 the end of April. 

24 So the rest of the change-over won't occur -- 

25 CHAIRMAN LOCKYER: That's when the year-and-a-half 

26 starts to roll? 

27 MR. KELLER: That's correct. 

28 CHAIRMAN LOCKYER: And what obstacles have you 

1 discovered in trying to prepare for that program to hit the 

2 ground? 

3 MR. KELLER: I think the major obstacle is making sure 

4 that all the stakeholders understand what's at risk here and 

5 what's at stake. Because the state has chosen to keep the 

6 business more or less in the private sector, we've had to work 

7 with the providers, not only of the equipment that will be 

8 ' manufactured to do the testing, but with the leaders and rank 

9 and file in the test and repair industry, because one of the 

10 major challenges of the new program will be to do a lot more 

11 repair than we currently do in our program. 

12 The Legislature has closed a lot of the loopholes that 

13 have prevented repair from occurring in the past. So, the 

14 industry has some new challenges ahead of it in terms of making 

15 sure it provides competent repair. 

16 So, I think the second major obstacle that we're 

17 1 facing, and it's something that we need to deal with this year, 

18 is working with the industry to make sure they can provide that 

19 | competent repair service that consumers are going to be looking 

20 i for. 

21 CHAIRMAN LOCKYER: Is there any reason why the Valley, 

22 San Diego, South Coast, is there some logic to that? 

23 MR. KELLER: The key obstacle to the development of 

24 these test centers has to do with the local permitting 

25 I requirements, and the acquisition of land to build the 

26 i stations. So, South Coast is just the most difficult because it 

27 has the most dense population and has the large variety of local 

28 permitting agencies that the contractors will have to work with 

1 in order to build those stations. 

2 CHAIRMAN LOCKYER: Do you have any sense yet of how 
effective that whole program may be? Are you able to give us 

4 any estimates? 

MR. KELLER: Well, the pilot studies that we conducted 
6 last year in conjunction with the Air Resources Board, I think, 
demonstrated, and that's what we fought the U.S. EPA on, it 

8 demonstrated that a program that focuses on identifying and 

9 fixing the vehicles that we call gross polluters, the dirtiest 

10 vehicles, would indeed yield enormous benefits as far as excess 

11 emissions. 

12 I believe that as long as we can get consumer support 

13 for this program, in particular those consumers who own these 

14 vehicles, to get them fixed, that we will be able to see 

15 i significant emission reductions in this particular area. 

16 So, I believe tha-t we're on the right track. 

17 CHAIRMAN LOCKYER: What will happen if, let's say, it's 

18 | an old car that's close to a junker, but it's the only 

19 \ transportation somebody's got. 

20 Are they going to be able to avoid compliance, or will 

21 there be some unusual hardship that their life is about to 

22 encounter because of this? What do you expect. 

23 MR. KELLER: Several things have occurred since the 

24 original legislation. One was the passage of AB 63 last year, 

25 because the Legislature had originally conceptualized having 

26 ; some kind of repair subsidy fund that would be used to subsidize 

27 ; those that may have a problem with some large repair bills that 

28 , they never had to face before. 

1 Unfortunately, the funding mechanism that was designed 

2 was a voluntary one and hasn't yielded many results, so the 

3 Legislature passed AB 63, which offers consumers a 12-month 

4 extension on the time it would take to find the resources to 

5 take care of that problem. We don't know if that's going to 

6 work, but it is a first attempt. 

7 CHAIRMAN LOCKYER: What does it do? 

8 MR. KELLER: What it does is, when you bring your 

9 vehicle in, and you may have a large repair bill and you can't 

10 afford to get it fixed, the state would grant you 12 months of 

11 time to find the wherewithal to get it fixed and bring it into 

12 compliance. 

13 CHAIRMAN LOCKYER: And if you don't, what happens then? 

14 MR. KELLER: Then you won't be able to register your 

15 vehicle without a passing smog certificate. 

16 CHAIRMAN LOCKYER: You join the other one million 

17 people that drive without being registered. 

18 MR. KELLER: That's potentially going to happen. 

19 I think one of the things that's really critical is 

20 that we work with the Legislature on finding ways to solve this 

21 problem. I'm not sure that this is the only way to solve the 

22 problem. 

23 We are running a small scale model of this program 

24 right now here in Sacramento County so we can begin to figure 

25 ! out what are better ways than the ones we envisioned when the 

26 law was originally passed to deal with some of these problems. 

27 I might note also in passage that we do have a 

28 scrappage program that we're beginning to take a look at. So, 


1 another option would be that the state may be able to purchase 

2 that vehicle from that motorist, and we would crush the vehicle, 
get the emissions credits, and the motorist would at least get 

4 some cash to deal with the problem. 

CHAIRMAN LOCKYER: There are huge numbers now stacking 

6 up in garages and parking lots pursuant to the impound law for 
people that are driving under the influence that have prior 

8 convictions and drive with a suspended license or revoked 

9 license. Now we impound. 

10 There's a lot of cars that are gathering dust because 

11 they're ones that people don't want to pay the fees to get them 

12 out of impound. 

13 I don't know if anyone's trying to take credit for 

14 I them, but you might as well get in that line. 

15 MR. KELLER: One of the members of our review committee 

16 that's been instrumental in helping us design this program made 

17 : a suggestion that we test all those cars. It's an area that 

18 we've been looking into as a possibility to get emissions 

19 credits fairly quickly. 

20 CHAIRMAN LOCKYER: Other questions, Members? Senator 

21 Ayala. 

22 SENATOR AYALA: Mr. Keller, the industry claims that 

23 j they will have a new gasoline on line by, I believe, July 1st. 

24 And that from the very first day, we're going to remove tons of 

25 pollution from the air. Starting with the very first day that 

26 they have to use that gasoline. It'll be a period of time to 

27 I remove the old gasoline from the tanks, stations. 

28 Are you as enthusiastic as they are about that 

1 possibility? 

2 MR. KELLER: Well, as I understand it, and I'm not an 

3 expert on the over-all air quality problem, Senator, but as I 

4 understand it, we still have enormous gaps in the emissions 

5 reductions that we have to achieve pursuant to federal law. 

6 As I understand the cleaner burning gas programs to 

7 which you refer, this is going to help us, if it works right, to 

8 make a dent in the vehicle emissions, which is one of the areas 

9 that we need to do a better job at. 

10 So, we kind of look at it as a companion piece to what 

11 the smog check program's going to do. Its benefits will be 

12 specific but limited, and what we have to do is deal with 

13 vehicles who have a larger problem which has to do with the 

14 operation of their engine, make sure that the engines are 

15 operating properly, so that the cleaner burning gas will also 

16 have the greatest effect. 

17 SENATOR AYALA: The new gasoline will do nothing in 

18 terms of your smog check program. You'll just continue as 

19 before. 

20 MR. KELLER: That's correct. Again, as I understand 

21 i it, the cleaner burning gas is a whole separate approach to 

22 i reducing emissions, in addition to the benefit that we can get 
2 3 I from our smog program. 

24 SENATOR AYALA: Is it going to change the approach to 

25 J the problem you have today? 

26 MR. KELLER: At this point, we don't anticipate that. 

27 Again, we must work very closely with Air Resources Board as 

28 j that program rolls out in case any unanticipated problems 


1 regarding car maintenance or repair arise by virtue of using 

2 j that gas. 

SENATOR AYALA: If it's going to take that much smog 

4 out of the air, if it removes that much smog out of the air, 

pollution, it would make your job a little bit easier. 

6 MR. KELLER: Well, I wish that were the case, but I 

believe that our studies demonstrate that the problem with 

8 maintenance and repair of vehicles is of such -- such acute 

9 degree that we still have to have a very aggressive program for 

10 smog check. The cleaner burning fuels program will help us in 

11 general, but smog check is focused on the dirtiest vehicles. 

12 SENATOR AYALA: Thank you. 

13 CHAIRMAN LOCKYER: One of the rather obvious reasons 

14 that we wish you success is the growing evidence that the larger 

15 cause of our smog conditions is mobile vehicles rather than 

16 j stationary sources. And we've done a lot to try to clean up the 

17 business emissions at stationary sources, and it creates 

18 difficulties to expand business in California and create jobs as 

19 long as we have this problem. 

20 In certain regions it's a serious matter, and we have 

21 [ to be disciplined about cleaning up mobile sources or we're 

22 i going to have the business environment suffer. 

23 I am pleased by your efforts and wish you success. I 

24 j hope you'll keep us periodically updated as to the progress or 

25 difficulties that you encounter. 

26 MR. KELLER: Absolutely, Senator. We will actually be 

27 briefing the Transportation Committee tomorrow afternoon at 

28 j 2:00, if anybody wants to drop by and get into some of these 


1 things in detail. 

2 CHAIRMAN LOCKYER: Some Members are on that also. 

3 MR. KELLER: That's right. 

4 CHAIRMAN LOCKYER: Other questions? John. 

5 SENATOR LEWIS: Just a quick question on the Central 

6 Valley Project you're getting ready to roll out. 

7 How is it that the cars are chosen? Is that via the 

8 remote sensing program? 

9 MR. KELLER: We have -- we are required by law to 

10 ! identify and bring in 15 percent of the vehicle population in 

11 | any region. We have three categories. 

12 First of all, the two percent random sample that will 

13 be just generated off the DMV data base and that's for control 

14 purposes, so that over time we can measure how well we're 

15 j cleaning up the emissions. 

16 About six percent will be called in by remote sensing, 

17 which is a way of measuring emissions as vehicles drive by, and 

18 \ the balance will be called in on cycle. That is, when the DMV 

19 !; registration is to be renewed every two years, by virtue of what 

20 we call a high emissions profile, which we developed as a way of 

21 predicting the likelihood, based on a number of characteristics 

22 ; of a particular vehicle, including that vehicle's individual 

23 smog check history as to whether it might be gross polluting 

24 ; vehicle. 

25 In the initial test of that particular device here in 

26 : Sacramento, we found it to be approximately 67 percent 

27 j effective, which means that two-thirds of the time we are indeed 

28 | predicting the dirtiest cars when they come in. 


1 SENATOR LEWIS: Has there been a problem on the other 

2 side of the equation, pulling in cars that are not 

3 emitting? 

4 MR. KELLER: Generally speaking, if we call a car in on 
the high emitter profile, it will fail the test, but whether it 

6 will fail at the gross polluter levels is part of the issue. 

Again, part of the value of running a small scale model 

8 of this program currently is that it allows us to refine all of 

9 the science and the data, because clearly we only want to call 

10 vehicles which are failing. That would be the purpose of -- the 

11 state becomes the heavy now, so that the mechanic and the 

12 technician in the shop which fails vehicles, the state's going 

13 to take a larger responsibility for that. 

14 We intend to continue to refine that. And there are 

15 other concepts floating around that we're considering as a way 

16 of making sure that we get those vehicles in, in a way that is 

17 least disadvantageous to consumers. 

18 CHAIRMAN LOCKYER: Unless there are other inquiries, 

19 I'll entertain a motion on the matter. 

2 SENATOR BEVERLY: Move we recommend confirmation. 

21 CHAIRMAN LOCKYER: Senator Beverly has done such. Call 

22 the roll, if you will. 

23 SECRETARY WEBB: Senator Ayala. 


25 SECRETARY WEBB: Ayala Aye. Senator Lewis. 

27 SECRETARY WEBB: Lewis Aye. Senator Petris. 



1 SECRETARY WEBB: Petris Aye. Senator Beverly. 


3 I SECRETARY WEBB: Beverly Aye. Senator Lockyer. 


5 SECRETARY WEBB: Lockyer Aye. Five to zero 


7 MR. KELLER: Thank you. I'll need it 
CHAIRMAN LOCKYER: Keep us informed 

9 MR. KELLER: Absolutely, 

10 [Thereupon this portion of the 

11 Senate Rules Committee hearing was 

12 terminated at approximately 3:30 P.M.] 

13 --00O00-- 


l :rtificate of shorthand reporter 


3 I, EVELYN J. MIZAK, a Shorthand Reporter of 

the State of California, do hereby certify 

5 That I am a disinterested person herein; that 

6 the foregoing transcript of the Senate Rules Committee hearing was 
reported verbatim in shorthand by me, Evelyn J. Mizak, and 

8 | thereafter transcribed into typewriting. 

9 I further certify that I am not of counsel or 

10 attorney for any of the parties to said hearing, nor in any way 

11 ; interested in the outcome of said hearing 

12 j* IN WITNESS WHEREOF, I have hereunto set my 


13 hand this // day o f ^ ^^A^U^^^t^ 1996 





'horthand Reporter 












Additional copies of this publication may be purchased for $3.25 per copy 
(includes shipping and handling) plus current California sales tax. 

Senate Publications 

1020 N Street, Room B-53 

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Make checks payable to SENATE RULES COMMITTEE. 
Please include Stock Number 292-R when ordering. 






ROOM 113 


2:07 P.M. 


FEB 2 6 1996 











ROOM 113 













25 Reported by 


27 Evelyn J. Mizak 

Shorthand Reporter 


2:07 P.M. 










9 GREG SCHMIDT, Executive Officer 
PAT WEBB, Committee Secretary 
RICK ROLLENS, Consultant on Bill Referrals 

12 NANCY MICHEL, Consultant on Governor's Appointments 



Correctional Training Facility, Soledad 

FRANK SEARCY, President 

Chicano Correctional Workers Association 

17 ROY MABRY, President 

California Association of Black Correctional Workers 

Valley State Prison for Women 

D. GAIL LEWIS, Warden 
Pleasant Valley State Prison 

JIM GOMEZ, Director 

California Department of Corrections 



2 Page 

3 Proceedings 1 

4 Governor's Appointees 

5 LINDA J. CLARKE, Warden 
Correctional Training Facility, Soledad 1 


Background and Experience 1 


Witnesses in Support: 




FRANK SEARCY, President 

Chicano Correctional Workers Association 2 

ROY MABRY, President 

California Association of Black 

Correctional Workers 3 

Questions by SENATOR AYALA re: 

Problems Envisioned in Next Five Years 4 

Drugs and Alcohol in Prisons 4 

Motion to Confirm 5 

Committee Action 6 


Valley State Prison for Women 6 

Background and Experience 6 

Witness in Support: 

FRANK SEARCY, President 

Chicano Correctional Workers Association 7 

Motion to Confirm 7 

Committee Action 8 

D. GAIL LEWIS, Warden 

Pleasant Valley State Prison 8 

Background and Experience 8 

Questions by CHAIRMAN LOCKYER re: 

Hardest Part of Job as Warden 9 


1 Questions by SENATOR AYALA re: 

2 Design Capacity of Prison 10 

3 Statements by JIM GOMEZ, Director 
California Department of Corrections 11 




Prisons under Construction 11 

True Design Capacity of Prisons 12 

Questions by SENATOR AYALA re: 

Ideal Capacity 12 

Questions by SENATOR BEVERLY re: 

New Prison Manager vs. Warden 14 

Questions by CHAIRMAN LOCKYER re: 

Responsibility with Inspector 

General ■ s Office 14 

Current Residence 14 

Motion to Confirm 15 

Committee Action 15 

Termination of Proceedings 15 

Certificate of Reporter 16 

1 P-R-O-C-E-E-D-I-N-G-S 

2 --00O00-- 

3 CHAIRMAN LOCKYER: Perhaps we should begin with 

4 appointees, since we've kept people waiting, and then go to 

5 reference of bills when we can get back on track here. 

6 So our gubernatorial appointees, first appearing today, 

7 Linda Clarke, the Warden at Soledad. 

8 Good afternoon. 

9 MS. CLARKE: Good afternoon. 

10 CHAIRMAN LOCKYER: You can certainly start with any 

11 : ! statement that you'd care to make as a way of introducing 

12 yourself. 

13 MS. CLARKE: Thank you. 

14 First, good afternoon, Senators and Members of the 

15 Committee. Thank you for gving me this opportunity to meet with 

16 you. 

17 Fourteen days from now I will have achieved 28 years in 

18 the Department of Corrections. I started as a correctional 

19 officer and have worked my way through the ranks, in addition to 

20 being a correctional officer, sergeant, lieutenant, supervising 

21 counselor, correctional administrator, chief deputy warden, and 

22 now Warden at the Correctional Training Facility. 

23 Also during this 28 years of career, I've achieved some 

24 personal goals of completing some education. I have a 

25 Bachelor's degree in management from the University of Redlands, 

26 J and a Master's degree in public administration from the 

27 University of Southern California. 

28 I think I've prepared myself to move into this 

leadership position, and I'm looking forward to more years at 
the Correctional Training Facility. 

Thank you. 

CHAIRMAN LOCKYER: Thank you very much. 

Well, let me first ask if there are any questions right 

I'll ask if there's any support testimony, if there's 
anyone who might wish to make comments at this time. 

Good afternoon. 

MR. SEARCY: Good afternoon, Senator and Committee 
Members . 

My name is Frank Searcy. I am President of the Chicano 
Correctional Workers Association. 

I'd like to be here this afternoon to offer our support 
for Ms. Clarke as Warden of the Correctional Training Facility. 

Just as a matter of information and possibly a 
coincidence, just recently, last week, I happened to -- on a 
special assignment as per the Director of Corrections, was at 
that institution. And we were able to speak to a few of the 
staff on all watches of the institution and in varying 
classifications . 

And our task to be there was to interview the staff on 
the Treatment of People Program. And very fortunately and very 
nicely, we heard that Ms. Clarke has made a very positive impact 
at that institution. She is listening to her staff, and she is 
responding accordingly and appropriately. And we walked away 
from there, I think, with a very nice, good feeling that she is 
very suited for the job. 

1 With that, again, we'd like to offer our support as 

2 Warden of that institution. Thank you. 

3 CHAIRMAN LOCKYER:. Thank you. 

4 Next comments, please. 

5 MR. MABRY: Good afternoon. I'm Roy Mabry, the State 

6 President for the California Association of Black Correctional 

7 Workers . 

8 Along with Frank Searcy, I attended that tour also. We 

9 go from institution to institution on special projects and talk 

10 to the employees regarding Treatment of People. 

11 ; Again, my comments are the same as his regarding 

12 ! support for the Warden at that institution. 

13 Also, for the remainder of the wardens that's coming 

14 i up, we toured those facilities also, and the support from our 

15 Association is the same, 100 percent. 

16 During our tours, we go into the institutions 

17 | unannounced, basically. We normally show up at midnight, and we 

18 just walk around unescorted and talk to the staff freely. And 

19 we try to get a good consensus of what goes on with the 

20 experience, what they experience in terms of their treatment. 

21 And we do a thorough report in terms of what we experience back 

22 to the Director. And whatever recommendations we generally make 

23 in reference to the information we get, we've seen some changes 

24 altered in terms of the concerns in the past. 

25 In this case, there was no -- nothing to be altered. 

26 The institution was something different, and I enjoyed the 

27 tour. 

28 Anyway, 100 percent support. 

CHAIRMAN LOCKYER: Thank you very much. 

Is there anyone else that would wish to comment at this 
time either for or against? 

Maybe Committee Members, Senator Ayala. 

SENATOR AYALA: I'd like to ask the Warden here, 
outside of overcrowding, what do you envision as the next 
problem facing the Department in the next five years? 

MS. CLARKE: Aside from overcrowding? Probably our 
efforts to try to continue to provide programs for the inmates 
that will keep them active, and involved, and their energies 
focused on improving themselves so that they can re-enter 
society rather than re-entering society with a negative mindset. 

SENATOR AYALA: That's not a problem, though, is it? 

MS. CLARKE: The re-entering of society? 

SENATOR AYALA: No, what you're trying to tell me about 
instructions for the inmates, and so forth, to make them better 
people . 

I asked what would be the next problem, other than 
overcrowding, and you mentioned that. That's a 

MS. CLARKE: Yes, it's a challenge, sir. 

SENATOR AYALA: It isn't necessarily a problem. Is 
there anything in the way for you not to accomplish that? 

MS. CLARKE: We — yes, we do have resources for that 

SENATOR AYALA: I'm always concerned about illegal 
drugs and alcohol in the prisons. Is there a problem in your 
institution, any more than all the others, or pretty much the 

1 same? 

2 MS. CLARKE: I don't believe there's anymore than any 

3 others, sir. 

4 SENATOR AYALA: What are we doing to correct that? I 

5 never can understand why or how they get into the institution. 

6 MS. CLARKE: Well, unfortunately, sometimes visitors 

7 bring them in. Where there's a will, there's a way. 

8 We're trying to meet the challenge of that with being 

9 able to research the background of the individuals who do come 

10 in and to deny access to those who have drug backgrounds. 

11 SENATOR AYALA: So, you are attempting to do something 

12 to eliminate that? 

13 MS. CLARKE: Absolutely, yes. 

14 SENATOR AYALA: Thank you. 

15 CHAIRMAN LOCKYER : Other questions. 

16 I don't think I have any, so I would entertain a 

17 motion. 

18 SENATOR BEVERLY: Move we recommend confirmation. 

19 CHAIRMAN LOCKYER: All right, we have a motion to 

20 recommend. 

21 Please call the roll. 

22 SECRETARY WEBB: Senator Ayala. 

24 SECRETARY WEBB: Ayala Aye. Senator Lewis. 


26 SECRETARY WEBB: Lewis Aye. Senator Petris. Senator 

27 Beverly. 


SECRETARY WEBB: Beverly Aye. Senator Lockyer. 



CHAIRMAN LOCKYER: Let's leave the roll open for 
Senator Petris. 

Thank you. Good luck, Warden. 

MS. CLARKE: Thank you. 

CHAIRMAN LOCKYER: We also have — well, it's Warden 
Day, I guess -- Mr. Kuykendall at Valley State. 

Good afternoon, sir. 

MR. KUYKENDALL: Good afternoon, Mr. Chairman, Members 
of the Committee. 

I'm here today after having served 28 years with the 
Department of Corrections. The last fifteen years, I've spent 
in various administrative positions in different facilities, 
both male and female facilities in California. 

The last ten years I've spent in opening and operating 
female correctional facilities, specifically the new ones that 
have opened in Stockton and Madera. 

I spent three years as the Associate Warden at 
Stockton, and was subsequently promoted to Chief Deputy Warden 
at Central California Women's Facility. I helped to open and 
operate that facility as the Chief Deputy Warden for five 
years . 

Most recently, in 1994, I was appointed as the new 
prison manager at Valley State Prison for Women, where I'm 
currently assigned. In April of 1995, I was appointed as the 
Acting Warden at that facility. That facility opened in May of 

1 1995 with a design capacity of 1980. We currently have an 

2 inmate population of just over 2200. 

3 I realize this appointment is a little bit unusual in 

4 that it's the first time that a male has been appointed as the 

5 warden in California over a female correctional facility. But I 

6 would reiterate that I've been in training for ten years, so I 

7 feel that I'm somewhat qualified to continue the job that I'm 

8 in. 

9 Thank you. 

10 SENATOR BEVERLY: Any questions of the nominee? 

11 Anyone here to testify for or against the nomination? 

12 MR. SEARCY: Thank you, Senator. I'll be as brief as 

13 possible. 

14 Again, the Chicano Correctional Workers Association 

15 completely endorses Mr. Kuykendall for this position. We feel 

16 that his qualifications and his experience, as he stated, ten 

17 years, yes, very well qualifies him for this position also. 

18 So again, therefore we recommend his endorsement, his 

19 confirmation, for this position. Thank you. 

2 SENATOR BEVERLY: Thank you very much. 

21 Anybody else? Any questions by the panel? 

22 Is there a motion? 


24 SENATOR BEVERLY: Senator Lewis moves we recommend 

25 ; confirmation. 

26 I Call the roll. 

27 SECRETARY WEBB: Senator Ayala. 


SECRETARY WEBB: Ayala Aye. Senator Lewis. 


SECRETARY WEBB: Lewis Aye. Senator Petris. 


SECRETARY WEBB: Petris Aye. Sentor Beverly. 


SECRETARY WEBB: Beverly Aye. Senator Lockyer. 


SECRETARY WEBB: Five to zero. 

SENATOR BEVERLY: Do you want to open the roll on the 
first appointee? 

SENATOR PETRIS: Where is Valley State? 

MR. KUYKENDALL: It's in Madera County, right near the 
town of Chowchilla. 


CHAIRMAN LOCKYER: "Senator Petris, the first interview 
of Warden Clarke was concluded with a four-zero, the roll held 
open if you'd like up to open that roll. 

SENATOR PETRIS: Yes, please. Petris Aye. 

SECRETARY WEBB: Five to zero. 

CHAIRMAN LOCKYER: Warden Lewis is our next person. 

Good afternoon. 

MS. LEWIS: Hello. 

CHAIRMAN LOCKYER: Maybe you'll give us a little 
picture of your background as well. 

MS. LEWIS: I ' d be happy to, thank you. 

I, too, started with the Department of Corrections 28 
years ago. I started as a correctional officer at the 


1 California Rehabilitation Center in Norco, California, and 

2 promoted to sergeant, and lieutenant, and counselor. 

3 And I think my most recent experience prior to coming 

4 to Pleasant Valley was as Chief Deputy Warden at the California 

5 Men's Colony in San Luis Obispo, and as Chief Deputy Warden over 

6 out-patient psychiatric programs at the California Medical 

7 j Facility at Vacaville. 

8 I came to Pleasant Valley, to Coalinga, as the new 

9 prison manager in July of 1994. We opened to intake of inmates 

10 in November of 1994, and we've gone from zero at that time to 

11 4200, and we have we're going to be opening our gymnasiums to 

12 overcrowding in the next few months. 

13 I think we've had a very successful activation. I'm 

14 proud of the prison, and I have enjoyed every minute of it. 

15 CHAIRMAN LOCKYER: What's been the hardest part of your 

16 job as Warden? 

17 I MS. LEWIS: Well, I don't -- I don't really think so 

18 ; much in terms of hard or easy as much as concerns. 

19 i I think, though, if you talk about the hardest part, it 

20 generally has to do with personnel actions. Any time you're 

21 involved in the hiring or firing of someone and affecting their 

22 life, that, I guess, gets into the hard definition. 

23 CHAIRMAN LOCKYER: Maybe I'll be allowed to tell a 

24 story. Can I take the two minutes?. 

25 SENATOR PETRIS: Sure, tell us a story. 

26 CHAIRMAN LOCKYER: It makes the same point, Warden. 

27 I was sitting at a college graduation next to the 

28 President of Bechtel one year and asked him, "What is the 


hardest part of your job?" 

He said, "Personnel." 

I said, "Gee, could you give me an example?" 

"Well, we've got this chief corporate counsel for 
Bechtel, and he's one of these people, lawyers, that say you 
can't do this, you can't do that, you can't do that, and it's 
very frustrating. We're all kind of wanting to say: what can 
we do? You know, we're tired of it." 

He said, "You know, I was about to fire the guy, but 
fortunately Ronald Reagan just made him Secretary of Defense, 
Cap Weinberger." 


CHAIRMAN LOCKYER: Of course, the interesting thing, if 
you now look at the historical accounts of the Iran-Contra 
discussion, Cap was the one in the Cabinet saying, "You can't do 
that. You can't do that." - 

Did anyone want to ask the Warden some questions? 

SENATOR AYALA: I'd like do ask the Warden, the 
facility's only a year old, or thereabouts? 

MS. LEWIS: Yes, that's right. 

We received our first inmate November, '94. Well, 
we're a little over. 

SENATOR AYALA: It's already twice the capacity it was 
designed for? 

MS. LEWIS: Yes, it is. Yes, it is and growing. 

SENATOR AYALA: Why didn't Mr. Gomez design a larger 
facility to start with? 

CHAIRMAN LOCKYER: Jim, we'll toss that one to 


1 you. 

2 MR. GOMEZ: Because I could' t get the bill through the 

3 Senate, Senator. 

4 [Laughter] 

5 SENATOR AYALA: I'm sorry I asked the question. 

6 CHAIRMAN LOCKYER: Now I have to correct the record 

7 because that's not true. 

8 SENATOR AYALA: From there, where do we go if it's 

9 designed for 2200 and you've got 4300 already there within the 

10 year? This is not a women's prison; is it? 

11 MS. LEWIS: No, this is a Level Three male facility. 

12 SENATOR AYALA: So, where will these people be going? 

13 From there to some new facililty we're constructing at this 

14 point? 

15 MS. LEWIS: Well, we have — 

16 SENATOR AYALA: Maybe I ought to ask Mr. Gomez that. 

17 MR. GOMEZ: I'll say two things. 

18 We opened Salinas Valley in May, which is the second 

19 prison in Soledad, and that's the next major activation. 

20 We open Corcoran in about a year and a half. We have 

21 17,000 emergency beds that we're constructing and we're looking 

22 at right now. 

23 So, we're okay for '96 and '97, barring any major 

24 catastrophic disturbances. L.A. County pulled out 800 beds 

25 about a week ago and told us they wouldn't rent them to us. They 

26 had a major riot in the L.A. County Jail system. 

27 So, we have plans that get us through '96 and get us 

28 through '97 with a couple new institutions. '98 and beyond is 


where the big problems lie, and it's really with the Senate, and 
Assembly, and Governor to make some big policy decisions in the 
next six months. 

SENATOR AYALA: That project was in the making for 
what, four years or something like that, before they started 
construction, and it was designed for only 2200 inmates, and 
now -- 

MR. GOMEZ: When we design, we know we're going to put 
two in a cell. We know. And her facility should have 4200 
inmates. She's got four gymnasiums. 

We'll probably take a thousand inmates out of L.A. and 
dump them in her gymnasium in the next six -- four to six weeks. 

So, we put them wherever we can, Senator, when the need 
arises . 

SENATOR AYALA: I toured CIM a couple weeks ago, and 
they've got these people on" the gym floors, double-decked. 

MR. GOMEZ: We're going to triple-deck. We have the 
triple bunks, and part of these emergency beds are triple bunks. 
We have to find a place to put them, unless they're let out to 
the public, and we made a commitment -- 

SENATOR AYALA: Capacity-wise, what is the ideal number 
-- of course, you have a hundreds -- but I mean, actually you 
can really supervise well with? Is it 2200? 

MR. GOMEZ: We can supervise two people in a cell in 90 
percent of the cells, as long as they're not condemned inmates, 
psychiatric inmates, security housing. Unless they're really 
special, most inmates are able to have two to a cell in a 
60-square foot cell or an 80-square foot cell. 


1 SENATOR AYALA: If you had your way, what would be the 

2 ideal capacity for these prisons? 

3 MR. GOMEZ: One-fifty. 

4 I think there's an efficiency of scale that California 

5 has demonstrated that we can run prisons much cheaper and more 

6 staff efficient by having two in a cell. I think we've built 

7 the sewage capacity, we've built the water capacity for 180-190. 

8 And as long as there's program available for inmates, I 

9 think you can go 150, 160, 170. 

10 The problem is when you don't have something for 

11 inmates to do, and you've got a thousand unoccupied inmates, 

12 then you've got a real problem. So, you need those people to be 

13 busy and have a job, an academic education, vocational 

14 education. 

15 I You cannot let someone sit around and not have 

16 something to do, because these people will think up bad things 

17 to do if they don't have anything to do. 

18 SENATOR AYALA: So, 150 would be the ideal, assuming 

19 that you have a central focal position for administration? Have 

20 all these satellites with 150 people in them? 

21 MR. GOMEZ: We'd feel very comfortable at that level. 

22 But I think that's something that two directors or three 

23 directors from now may have an opportunity to experience. I 

24 don't believe this one will. 

25 SENATOR AYALA: Thank you very much. 

26 CHAIRMAN LOCKYER: Thank you. 

27 ! SENATOR BEVERLY: I have one. I meant to ask this of 

28 Warden Kuykendall. 


What's the difference between a new prison manager and 
a warden? 

MS. LEWIS: Before the prison is activated, during the 
construction phase, they're called new prison managers. 

SENATOR BEVERLY: I see, thank you. 

CHAIRMAN LOCKYER: Would you tell us a little bit about 
what you did when you were in the Inspector General's Office? 
What was your responsibility? 

MS. LEWIS: Yes. I was responsible for conducting 
compliance reviews throughout the Department. We looked -- 

CHAIRMAN LOCKYER: In some area? 

MS. LEWIS: No, we looked at all areas of operations 
within both the prisons and the camp system and the parole 

CHAIRMAN LOCKYER: And what would noncompliance mean? 
What were they not complying with? 

MS. LEWIS: With policy and procedure. 

CHAIRMAN LOCKYER: What would be an example? Could you 
give me an example? 

MS. LEWIS: For example, if you're looking at control 
of hazardous and toxic kinds of things, if they don't have 
running inventories, if they don't have safe storage. 

CHAIRMAN LOCKYER: Okay, got you. 

I assume you don't live in Sacramento anymore. It has 
you down living in Sacramento. 

MS. LEWIS: Well, I actually have a home in 
Sacramento. I also have a home in Coalinga. I sort of have 
kept my home here because it's close to my children and my 


1 grandchildren. I even keep my dog here. 

2 CHAIRMAN LOCKYER: Other questions from Members? 

3 What's the pleasure? 

4 SENATOR BEVERLY: Move we recommend 

5 confirmation. 

6 CHAIRMAN LOCKYER: We have a motion. If you'll call 

7 the roll, please. 

8 SECRETARY WEBB: Senator Ayala. 


10 | SECRETARY WEBB: Ayala Aye. Senator Lewis. 


12 SECRETARY WEBB: Lewis Aye. Senator Petris. 


14 SECRETARY WEBB: Petris Aye. Senator Beverly. 


16 SECRETARY WEBB: Beverly Aye. Senator Lockyer. 


18 SECRETARY WEBB: Lockyer Aye. Five to zero. 

19 CHAIRMAN LOCKYER: Thank you. Good luck to the three 

20 wardens that were with us. We wish you well. It's a hard job 

21 [Thereupon this portion of the 

22 Senate Rules Committee hearing was 

23 terminated at approximately 2:28 P.M.] 

24 --00O00-- 



I, EVELYN J. MIZAK, a Shorthand Reporter of 
the State of California, do hereby certify: 

That I am a disinterested person herein; that 
the foregoing transcript of the Senate Rules Committee hearing was 
reported verbatim in shorthand by me, Evelyn J. Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel or 
attorney for any of the parties to said hearing, nor in any way 
interested in the outcome of said hearing. 

j IN WITNESS WHEREOF, I have hereunto set my 

hand this Q_ day of s ^^)^.£yL4s^<&^c^ , 1996 


Shorthancr Reporter 



Additional copies of this publication may be purchased for $3.50 per copy 
(includes shipping and handling) plus current California sales tax. 

Senate Publications 

1020 N Street, Room B-53 

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Make checks payable to SENATE RULES COMMITTEE. 
Please include Stock Number 293-R when ordering. 










ROOM 113 


2:55 P.M. 

OCUM^* n * PT ' 

W»8 ^" 6 

































ROOM 113 


2:55 P.M. 

Reported by 

Evelyn J. Mizak 
Shorthand Reporter 







9 GREG SCHMIDT, Executive Officer 
PAT WEBB, Committee Secretary 
RICK ROLLENS, Consultant on Bill Referrals 
NANCY MICHEL, Consultant on Governor's Appointments 


14 JAMES W. NIELSEN, Member 
Board of Prison Terms 


Board of Prison Terms 

Superintendent of Banks 



2 Page 

3 Proceedings 1 

4 Governor ' s Appointees : 

Board of Prison Terms 1 



Difference Being Chair of Board 

8 Makes in Job 1 

9 Number of Different Places Members 

Must Go in Typical Week or Month 2 





Questions by CHAIRMAN LOCKYER re: 

Changes 3 

Foreign Prisoner Transfer Program 4 

Number of Foreign-born Inmates 

from Mexico 4 

14 Request for More Information on Foreign 

Prisoner Process 5 

Statement in Support by SENATOR QUENTIN KOPP 7 

Qualities Necessary to Serve on Board of 

Prison Terms 8 

Questions by CHAIRMAN LOCKYER re: 

Ways to Change Patterns of Violence 9 

Indeterminate Sentencing Cases 11 

2i Sexual Predator Program 11 

Increase in Parole Revocations 13 

Alternative Sentencing Rather than 

Return to Prison for Parole Violators 14 

Implementation of Improvements in 

Work Environment 16 

Complaints about Board Members from 

People Unwilling to Come Forward 18 

Questions by SENATOR AYALA re: 

Foreign Prisoner Transfer Program 18 


1 How Can Undocumented Aliens Get 

Three Strikes without Being Deported 21 




Cost of Foreign Prisoner to State 22 

Motion to Confirm 23 

Committee Action 24 


Board of Prison Terms 24 


7 Background and Experience 24 

8 Statement by CHAIRMAN LOCKYER re: Deadline 25 

Motion to Confirm 25 

10 Committee Action 26 


Superintendent of Banks 26 




17 Increasing Numbers of Foreign Banks 29 

1 8 Reciprocity with Foreign Banks 30 

Background and Experience 26 

Questions by SENATOR PETRIS re: 

Consolidations and Mergers 29 

Number of Banks under Jurisdiction 

of Superintendent 29 

Complaints about Reduction in Local 

Branches Due to Consolidation of Banks 3 

Questions by CHAIRMAN LOCKYER re: 

Toughest Decision 31 

Questions by SENATOR LEWIS re: 

Concentration of Market Share in California ... 32 

Motion to Confirm 33 

Committee Action 3 3 

Termination of Proceedings 3 3 

Certificate of Reporter 34 

--00O00 — 

CHAIRMAN LOCKYER: Our first appointee is 
Mr. Nielsen. Thank you. 

MR. NIELSEN: Good day, Mr. Chairman and Members. 

CHAIRMAN LOCKYER: Thank you for waiting. We 
appreciate the chance to see you again. 

MR. NIELSEN: Indeed, Mr. Chairman. It's a pleasure. 

CHAIRMAN LOCKYER: Do you want to begin with any 
opening statement? 

MR. NIELSEN: I have none particularly, Mr. Chairman. 
It's just an honor to be before the Rules Committee for the 
purpose of confirmation. 

I've enjoyed my tenure in the role as a commissioner on 
the Board, and more recently as Chairman of the Board. 

I'll be happy to entertain any guestions that Members 
may prefer. 

CHAIRMAN LOCKYER: Is the job different when you're 
Chair than being a member? 

MR. NIELSEN: Mr. Chairman, as the Chairman of the 
Board, your primary duty is administrative, handicapped to the 
extent of being chair-bound in an office building, doing mostly 
administrative duties, rarely going on and doing hearings. 

CHAIRMAN LOCKYER: You did more of that as a 

MR. NIELSEN: As a commissioner, five days a week 
you're somewhere from Pelican Bay on the Oregon border, to 
Robert J. Donovan on the San Diego border with Mexico, doing 

1 hearings five days a week. 

2 The Chairman's role, it is more administrative. I 
don't know that I'd characterize it as having any more 

4 headaches. Vicissitudes of management do visit one who is in 

5 the Chairman's role. 

6 CHAIRMAN LOCKYER: As someone who spends a lot of time 
on airplanes, I used to be excited when I was kid, but I've 

8 learned that it gets to be pretty old for those that are flying 

9 all over the state all the time. 

10 How many, in a typical week or month, how many 

11 different places would you have had to have gone as a 

12 member? 

13 MR. NIELSEN: Generally, Mr. Chairman, a panel, and we 

14 have, depending on the numbers of commissioners we have 

15 available to us — we have one vacancy right now -- but we will 

16 have three to four panels going throughout the State of 

17 California every given week. By law, there can be two 

18 commissioners and one deputy commissioner, or a panel comprised 

19 of three commissioners. 

20 We never have less than three panels going at various 

21 institutions. There will be one panel at one institution for 

22 an entire week. On some rare occasions we will split the week 

23 for an adjacent prison, for example, Wasco or Delano or 

24 Corcoran. A panel may do a couple of hearings at one prison and 

25 go to the other for the rest of the week. 

2 6 CHAIRMAN LOCKYER: Maybe we ought to wait for the 

commissioner to join us, who's not being chair this year. 
28 But as a commissioner, you have an opportunity to spend 

a lot of quality time in these venues. 

MR. NIELSEN: I would say that commissioners are well 
traveled, the weeks in Calipatria, and Pelican Bay, and Delano, 
and Corcoran, and Avenal, and Chowchilla, and soon to be 
Susanville, are interesting, Mr. Chairman, as well in some cases 
getting there. 

As you as Pro Tern well know, traveling the state of 
California as you must, sometimes it ain't easy getting there 


Anything different since the last time we've seen you 
in terms of the burdens on the office, the budgets, the types of 
prisoners you see? Any changes that you might want to reflect 

MR. NIELSEN: I would only observe, Mr. Chairman, that 
the younger inmates, that you well know from your active role in 
sentencing legislation, are becoming a bit more violent as they 
come into the institution. Their disciplinary records do 
reflect that. It is an unfortunate phenomena. 

We certainly do see an increased pressure on our 
hearing work loads in regards to the life inmates in their 
suitability hearings, as well as the parole revocation 
proceedings. That gives us a constant pressure. 

We, like you, are considering and anticipating ways 
that we'll deal with the three strikes population. 

As I have talked with your staff, Mr. Chairman, we are 
viewing some things that we may be able to do with intermediate 
sanctions. And I think one thing very significantly, we're 

1 ' doing some exciting things with the foreign prisoner transfer 

2 program. 

3 The Governor delegates to the Chairman his authority to 

4 approve transfers. That has not been anything we've done in any 
great volume in years hence, but in the last one year, I've been 

6 able to transfer well more than we did in the previous three. 
Now 28 inmates have been approved in California for transfer, 
and in fact, 14 have been approved by the United States 

9 Department of Justice also. So, that will help with some of our 

10 bed count. 

11 CHAIRMAN LOCKYER: What are the rules on that? Of 

12 course, we'd like to do it with maybe several thousand that 

13 could be returned to country of origin. 

14 MR. NIELSEN: They vary with the treaty with the origin 

15 country. There's some 85 treaties and various compacts that we 

16 deal with. Those really are the definers of how many that you 

17 can transfer. 

18 CHAIRMAN LOCKYER: Of the 28, how many were from 

19 Mexico? 

20 MR. NIELSEN: Of some 20,000 foreign-born criminal 

21 offenders, about 18,500 from Mexico, so they are the country we 

22 try to deal mostly with. 

2 3 And we have been working with the immigration reform 

24 legislation, Mr. Chairman and Members, to secure some amendments 

25 that we feel will give us a greater degree of assurance of 

26 protection that these individuals that we transfer will not come 

27 back, or, in fact, in the host country they'll serve the time 

28 that we would expect that they comparably should as sentenced 

here. And what that, frankly, is doing is giving us a construct 
and an ability to transfer more of these individuals. 

We're also seeing a greater degree of cooperation with 
foreign countries who are interested in having some of their 
countrymen sent back home for various reasons, and we've tried 
to establish a good working relationship with Mexico. 

We have commissioned a study with the California State 
University System to study the efficacy of siting a prison in 
Mexico, not just from the self-interest perspective of 
California putting inmates there who are foreign-born in Mexico, 
but in a manner that, in the spirit of NAFTA, will help the 
states of Mexico and the nation. 

So far, in the preliminary stages of our study, it 
looks very positive. 

CHAIRMAN LOCKYER: Which university is doing that? 

MR. NIELSEN: California State University, Sacramento. 

CHAIRMAN LOCKYER: Of the 28 that you processed so far, 
do you think all of those were Mexican citizens? 

MR. NIELSEN: Not all, Mr. Chairman, but most of them. 
I think about three have been of other nationalities. The most 
are. And of the 28, 14 have in fact been approved by the United 
States Department of Justice, but thus far, only two by Mexico. 

The process is complicated by it isn't only California. 
We're but the first step. The federal government has to approve 
of the transfer as well as the receiving country. 

CHAIRMAN LOCKYER: I am interested in this process. If 
you can describe it, or send us, as Senator Kopp would call it, 
a "meemo" on the subject. 

MR. NIELSEN: Mr. Chairman, Mr. Panish of your staff 
has been contacted by myself and a member of our staff 
responsible and will be given a briefing. 

CHAIRMAN LOCKYER: We would like to know what the 
specific administrative details are so that we can try to assist 
with this whole effort, either to change federal law, or provide 
the resources, or whatever would be constructive to get this 
done with a large, a very large number of those 20, 000 that you 
referred to. 

MR. NIELSEN: I think we can very substantially, Mr. 
Chairman, with the passage of the immigration legislation, with 
the provisions that we would like in it, a few other things, and 
cooperative attitudes in foreign countries. I really believe 
that this is a potential, not for the many, many thousands, but 
quite a few thousand. 

In other words, we- can make a significant dent in the 
prison population accommodation, and as we anticipate the three 
strikers coming on, and again, those three strikers will 
probably be roughly in proportion, what country they come from, 
as to what the case is now, and the more we can do, the better. 

And the Legislature and the Governor, I might note, 
have responded. The new notification effort of foreign-born 
criminal offenders of their opportunity to apply has greatly 
increased the work load that we have to process and consider, 
therefore enlarging the pool. 

And as comfort levels increase, meaning that they'll be 
prosecuted if they return, or that the foreign country will keep 
them the same time that we would, then we're going to be able to 

facilitate a lot more transfers and save our budget a few bucks. 

CHAIRMAN LOCKYER: I'd appreciate it if your staff 
would keep us fully informed. 

Senator Kopp, do you wish to join us and make a 

SENATOR KOPP: If I could, Mr. Chairman. Thank you 
very much. 

Your reference to "meemo" reminds me that former 
Governor Brown died last week, and I learned that expressive 
abbreviation from his former general factotum, Mr. Chet Reed, 
who maybe Senator Petris remembers, who always referred to a 
document as a "meemo"; send me a meemo on this. 

Mr. Chairman, I just want to make a comment or two 
about our former colleague, not from the standpoint of the 
administrative matters about which you've examined him, properly 
and understandably, but from a legislative and character 

First with respect to the character. As we all know, 
Mr. Nielsen is a former colleague. And I will affirm to this 
Committee that in my frequent visits with him and my 
observations of him publicly, he always speaks with dignity and 
with grace about the State Senate and the institution which we 
love, and which sometimes is lumped in unfortunate fashion with, 
perhaps, a disdain for government in general. 

Secondly, with respect to legislative matters, I've 
been involved in a couple of pieces of legislation, one of which 
emanated from the Board of Prison Terms itself. And Mr. Nielsen 
has provided accurate information, has been conscientious in his 


responses to questions that were raised, and altogether 
respectful and vitally concerned with the legislative process, 
and the wisdom and the efficacy of the legislation that was at 
stake . 

And I commend him, Mr. Chairman, to all the Members of 
the Committee for confirmation again. 

CHAIRMAN LOCKYER: Thank you, Senator Kopp . 

Anyone want to ask Senator Kopp questions? No. 

Mr. Nielsen, would you care to comment on Senator 
Kopp's character? 

MR. NIELSEN: I could wax no more eloquently than my 
former colleague, Senator Kopp. 

CHAIRMAN LOCKYER: I don't know about factotums and all 
that stuff. 

MR. NIELSEN: Sometimes Q gets a little unwieldy with 
words, does he not. 

Mr. Chairman, if I might, just one point for the 
Members of the Committee. 

I'm often asked what kind of person needs to be 
appointed to the Board of Prison Terms, what qualities do they 
process . 

And I have to be candid with you, I always say one 
thing: strong character. 

It is a very tough job, not just — traveling is the 
least of it, Mr. Chairman, but all of your day is spent, five 
days a week, 52 weeks of the year, sitting across a table no 
closer than I from the worst offenders in society, many of whom, 
many of whom, had very terrible things happen to them in their 

young lives that you grieve for, but who have continued a 
pattern of harming many, many other people through the course of 
their lives in very heinous ways. 

It is incredibly depressing to sit in a little block 
house, cell-like room, those many hours of the day, hearing 
these sorry stories of life. 

So, for a commissioner to be successful, you need to 
have a very strong character and the keen ability not to take it 
home or to personalize it. 

CHAIRMAN LOCKYER: I appreciate your description of the 
job. It sounds almost like you're prisoners, in a way, except 
you do get to leave at night and go home, or go back to the 
motel in Delano, or wherever you are. 

Have you had a chance to just sort of reflect on all 
the stories you hear from prisoners about what, perhaps, could 
or should have been done to not have that happen, whatever those 
conditions were that produced that eventual pattern of criminal 
violence? Or is it just something we can't do anything about? 

MR. NIELSEN: No, Mr. Chairman. I think over the years 
the Legislature has grappled with it, with tougher sentencing 
and other societal attempts to do things as well. 

As I view the populations, and I don't only mean the 
life prisoners, the murder first, murder second, kidnap for 
purpose, but the determinantly sentenced as well, there are 
commonalities most assuredly. 

In fact, one of our commissioners is doing. an informal, 
and I would say probably not statistically necessarily valid, 
survey. But of all the cases before him, he's jotting down 


certain commonalities. And what my assumptions were, he's 
validated. And that is, a family that did not work, and drugs 
and alcohol. And those are absolutely common. 

And the various attempts that the Members of this 
Legislature have made towards family strengthening efforts, and 
towards dealing with the substance abuse problems of our society 
are very huge pluses in eventually curbing it. 

And I have to tell you that when I make my ominous and 
morbid speeches about my life right now, my public life, the 
people say, "Well, Jim, we just can't keep locking them up. 
What's the answer?" 

And I said, "It's one word, the family." If you 
strengthen the family unit, and we can argue what that requires 
and -- 

CHAIRMAN LOCKYER: How to do it, yes. 

MR. NIELSEN: If you will strengthen the family unit in 
some manner, then I believe that this situation will improve. 

And my dream is that one day out there hence, in maybe 
15-20 years, we'll be closing prisons and trying to define uses 
for those prison sites like we are now military bases. 

CHAIRMAN LOCKYER: You mention chronic unemployment in 
the families they come from, and drug and alcohol, substance 
abuse problems that seem to be true both of the family and of 
the prisoner? 

MR. NIELSEN: Oh, absolutely. Job skills, never knew 
how to find a job, did not have an opportunity to be trained 
towards a job, dropped out of school for various reasons, did 
not have the family support. You know, obviously that means the 


mother and father, but it also means the extended family, 
grandparents, et cetera. 

Those are a major societal difficulty right now. I'm 
no genius. The Legislature knows that as well as I and have 
responded in many ways. 

I would only encourage the Legislature and all of us to 
remain vigilant. If we are so, I believe that there can be some 

You see in a few of these individuals hardened, evil 
people, particularly up in Pelican Bay, and they're probably 
never going to change. 

But there are some who sincerely do want to, and 
society's problem for this population is kind of giving them the 
answers as to how, particularly with our youthful offender. 

CHAIRMAN LOCKYER: Now, you see just the indeterminate 

MR. NIELSEN: As far as commissioners and the Board of 
Prison Terms, that is the primary duty. But our deputy 
commissioners, over which I have administrative authority as 
Chairman, do conduct the revocation hearings for parole 
violators. The mentally disordered offender program is 
conducted by us, and also we now have a major role in the new 
Assembly Bill 888 and Senator Mountjoy's legislation related to 
sexual predators civil commitment. 

CHAIRMAN LOCKYER: How is the sexual predator program 
getting established? Is it moving along? 

MR. NIELSEN: It's an interrelationship between 
ourselves, the Board of Prison Terms — the Department of Mental 


Health is, if you will, the lead agency because, obviously, it's 
treatment oriented or treatment based, if you will. If these 
individuals are diagnosed as yet dangerous, they must be 
treated -- and the Department of Corrections. 

I have to say it's going rather well so far. We've got 
a little over 40 individuals who are today either sitting on a 
45-day hold, awaiting some jury or judicial consideration as to 
whether they should receive the civil commitment. And but for 
this legislation, they would be on the streets, and some of them 
would be what their normal business has been, sex predators. 
So, it is another very positive tool. 

And the Legislature, I think, rightly responded to that 
area of concern, affording a new tool that the one strike 
legislation would not get. 

CHAIRMAN LOCKYER: There aren't a lot of them yet, I 
guess, numerically? 

MR. NIELSEN: No, there are not a lot. 

CHAIRMAN LOCKYER: There are serious cases, but 

MR. NIELSEN: There's a very strict criteria, 
Mr. Chairman, that one has to meet to qualify for this, 
including two priors, and the nature of the relationship with 
the individual, a diagnosed mental disorder, are all factors 
that must be considered. So, it's a fairly strict criteria, 
which means your net is not going to be all encompassing. 

But we are, I believe, able to catch the worst, and 
that's good news for society. 

CHAIRMAN LOCKYER: I note you mentioned your role in at 


least being a supervisor for the agents that are involved with 
parole revocations. 

Our materials indicate a rather significant increase in 
revocations in recent years. Is that a result of any conscious 
policy change in the nature of the acts of the parolees, or 
what's going on here? 

MR. NIELSEN: Mr. Chairman, I do have statistics 
available. I didn't bring them in my pocket here today, but 
I've reviewed them as recently as a couple hours ago. Over the 
years, it rather varies. 

I would say over the last three years, the revocation 
rates have increased a little bit on average, but not 
substantially. I think you can easily say that it's been a 
fairly consistent policy. 

CHAIRMAN LOCKYER: I only can tell you, Mr. Chairman, 
for the one year. We have '92-3 to '93-4. I guess it takes a 
while to get the '95 statistics, for example, until they're 

It went from 34-40,000, so more than a 15 percent 
increase just in that one year. 

MR. NIELSEN: But some are coming back in more than one 
time on a revocation, too. There's just not a singular person. 

Sometimes they are revoked, returned to custody for a 
short period of time, and some cases for simply time served, and 
then they recidivate. We have them recycling some three or four 
times . 

But our statistics, as a percentage, if you will, 
indicates fairly consistent. But I'd say we're up a little bit 


from, say, three years ago. 

Is there any particular reason? Not one bloody thing 
has changed. 

The way we convey messages to our deputy commissioners, 
there's a constant training on rules and regulations under which 
we operate. That means the statutes of the State of California 
and the implementing regulations, Title Fifteen. And to what 
degree those have been any tougher, and to some degree they 

There is not yet, but there is attempt in the 
Legislature to lengthen the revocation time to more than one 
year as the maximum. There has been the legislation to extend 
the numbers of years in between suitability considerations for 
life inmates in those hearings. And those things have sent a 
message, I think, from society to a degree. 

But I think you wi-11 see that there's no great spikes 
that would be of any great concern. 

And I can assure you that nothing happened in the 
training or in the caliber of our deputy commissioners nor the 
commissioners that is advancing that. 

CHAIRMAN LOCKYER: Can you recall, even if it's just 
as a general notion, not specific numbers, how much, how often 
the Board would rely on, rather than a return to custody to a 
prison environment, some alternative sentencing, maybe a drug 
rehab if that's the nature of their problem, or something of 
that sort? Are those alternatives part of your work-up of a 
case, or either they come back to the joint or they don't? 

MR. NIELSEN: No, Mr. Chairman. That is not an 


automatic. It is a fundamental consideration in the sanction. 

Once good cause is found in a case, in the 
dispositional phase, what are you going to do with this 
individual? Is the behavior so egregious that you're going to 
return him to custody for a year? Is it that you're simply 
going to send them right back out? 

And in any event, whatever you're going to do, if they 
are going to go back and hit the streets, a knowledge of what's 
out there is going to be very important. 

The inmate will comment. Sometimes victims come, and 
they'll say what's out there is, we don't want them back. But 
very often the parole agent will express some interest. They 
participate in the revocation proceedings. 

And yes, there is a halfway house here. 

I did mention earlier our conversation with Mr. Panish 
about intermediate sanctioning that can be available. What has 
frankly stifled me is, though we can put such sanctions into 
effect fairly quickly, the inventory of resources in the 
community have not been much available to us because I don't 
have the staff to employ. 

But interesting, I met with a gentleman named 
Mr. George Ortiz last Monday, who does community resource kind 
of work, California Human Development Corporation and La 
Cooperativa. And they have some ideas as far as education, job 
training, and their network avails me an opportunity that I have 
not had heretofor to define some more intermediate sanctions in 
areas that may be of interest. 

So, we are as a board very interested in this area. I 


am, as a chairman, administratively looking at what 
opportunities may exist. 

CHAIRMAN LOCKYER: Well, as we get increasingly close 
to the time when there's just not enough space in the prison 
system, I hope whatever alternatives that there might be that 
would still allow for appropriate punishment or rehabilitation 
will be exhausted, because as we all know, we're getting close 
to the point where there just isn't room in the inn. 

MR. NIELSEN: I'm mindful of Senator Calderon's 
comments last week in the hearing that was held here. Three 
strikes, for example, as he stated, as I recall, is here to 
stay. We've got to define some ways to manage it. 

Certain offenders must stay in prison, as far as I'm 
concerned. They are going to go out and reoffend, and our job 
is to be predictive as to which ones those are. 

But others that can matriculate to free society, we 
need to be able to encourage that. 

CHAIRMAN LOCKYER: I note that you have a special chore 
as Chair, which is to manage the work environment and the 
quality of the work that is done, and especially most 
communication among personnel, sexual harassment, over 
familiarization. Some of those issues that come up from time to 
time in any bureaucratic or any work environment. 

Has something happened to try to implement improvements 
in that area, or do you have any plans of that sort? 

MR. NIELSEN: We have been well on the way, 
Mr. Chairman, since I became, in fact, Chairman of this Board. 

Number one, as far as sexual harassment, there is an 


absolute intolerance of such behavior. We deal with it through 
regular training. In fact, this year -- as you know, sexual 
harassment training is something very important in government, 
period, as well as battered women syndrome. And to our 
training, I've added the issue — the item of domestic 

Battered women is required training, but domestic 
violence is not. But I've worked with Assemblywoman Kuehl ' s 
office on this issue, and Assemblywoman Speier to incorporate 
some domestic violence training. 

As far as sexual harassment, whenever there have been 
those rare occasions, and I can only think of a couple of 
instances in our organization of personnel problems, my policy 
is -- and our policy is clear of intolerance, but we immediately 
and thoroughly investigate, and immediately and thoroughly 
impose the appropriate sanction. 

As to familiarization, it is not only the fact but the 
perception of that that's of concern to the Board. Due process 
is absolutely vital. We do not owe any inmate a parole date, or 
to say that they will not be revoked, but we surely explicitly 
owe them the fair shot, the best shot. 

And familiarity and overfamiliarzation of individuals 
who practice before the Board is of grave concern, and we have a 
high level of intolerance, and in fact do have a policy related 
thereto, whereby we discourage and define what that must look 
like . 

Being friendly and courteous is just a common life 
circumstance that we encourage, but that individuals that would 


compromise themselves is not tolerable. And whenever there be 
even a perception that there be such a compromise, we ask the 
individuals to recuse themselves from that particular 
proceeding. And, in fact, if it was egregious and repeated 
behavior, they would then receive whatever the appropriate 

CHAIRMAN LOCKYER: Mr. Chairman, we're hearing too many 
complaints from people that are unwilling to come forward, so 
there seems to be a problem. 


CHAIRMAN LOCKYER: But a lack of evidence, because 
there are others involved in the system who are complaining 
about members of the Board who are reluctant to come 

MR. NIELSEN: Mr. Chairman, I assure you our policy is 
intolerance. It is in effect. It is being practiced. It will 
be trained, and my commitment to the Members of the Rules 
Committee, the Members of the Senate, and to the people of 
California, most importantly, is the Board of Prison Terms does 
not tolerate such behavior. 

CHAIRMAN LOCKYER: Other questions? Senator Ayala. 

SENATOR AYALA: Senator Nielsen, I'd like to revisit 
the foreign prisoner transfer program one more time. 

Is it working or not working? Apparently it's not 
working, because we've spent some $65,000 a year, which is not a 
great amount of money, but only three transfers have taken 
place . 

You indicate to us it's the federal government who is 


not cooperating with state government? 

MR. NIELSEN: Mr. Chairman, you're reading the Weitzen 
analysis of the budget by the Legislative Analyst, for whom I 
have enduring respect, but who was wrong. 

First of all, I did indicate a little earlier that we 
that I have approved 28, 14 of which have been in fact 
approved by the federal U.S. Department of Justice. Only two of 
those so far by Mexico. 

But it is a complicated process, and it isn't just fie 
on California. Though I approve them, they still have to go 
through the federal process. That takes, at a minimum, 12 
months and sometimes three years for the federal government of 
the United States to approve the transfer as well, and they 
must . 

Good news is, because we've been working so hard in 
such a cooperative spirit with the federal government, they now 
have even asked us to come back to Washington, D.C. to talk with 
them about expediting their own approval process. We will fully 
cooperate in that, and I think that offers a great deal of hope 
for the future. 

So, in the analysis thus far, it indicates, or would 
assume, that we in California, if we approve them, they ought to 
go. They do not. 

As I say, I've been able to approve some 28, and we yet 
need the approval and concurrence of Mexico and the U.S. 
Department of Justice. 

But what I think what I will be able to evidence in the 
budget process is that we've transferred well more than he is 


suggesting, and that the necessary cooperative spirit in the 
United States Congress, giving us the kind of legislative 
changes that we need, and maybe the impetus to change some of 
the treaties that we need, will be there as well because of our 
cooperative spirit with host countries, particularly Mexico. 
We're going to see some better things happen there. 

We have had some positive dialogue with other foreign 
nations as well, I might note. 

SENATOR AYALA: You're saying we don't have the proper 
setting in Washington to automatically transfer the people back 
to their homes of origin to serve their sentences? 

MR. NIELSEN: I would say the approval process is 

When I first took over here, I thought the main 
impediment was simply the consent provision, which means that 
the inmate must consent to the transfer. Well, I found out that 
that's a factor, but it's not the greatest factor. There are 
many, many others. 

It is complicated, and only California can't solve it, 
but we haven't taken a benign role. We've been very aggressive, 
did a series of hearings throughout California, did a report. 
We are pushing the recommendations of that report. Those that 
need to be done legislatively, we are by whatever means of meet 
and confer with other foreign countries or the United States 
government, we are doing that as well as the United States 
Congress . 

We have worked with Members of the Legislature, 
including Senator McCorquodale last year on some legislation of 


interest to him, and, of course, the Governor, who is very 
disposed towards seeing more transfers as as long as they will 
protect public safety. 

So, the cumbersome process, Senator Ayala, has been the 
culprit. But I do believe that we can say we are making some 
good headway. 

SENATOR AYALA: How is it that an undocumented alien 
can get three strikes? After the first one, don't you deport 
him to the country of origin? 

MR. NIELSEN: Well, let's just say that deportation, 
formal deportation particularly, has not been a consistent 
process of the federal government. 

If they are formally deported, you see, and they return 
under the '94 crime bill, they get a 20-year federal sentence. 
Unfortunately, not many of those 20-year sentences have been 
meted out. 

One of our recommendations is for the United States 
Attorneys to vigorously prosecute returning formerly deported 
criminal offenders. If they do that, that's going to send a 
message to the streets, you might not ought to come back, be it 
a one striker, a two striker, coming towards your third strike. 
And we are hoping that that, coupled with a few other things, 
will stem that -- stem that tide. 

SENATOR AYALA: We have a number of illegal aliens up 
there that have two strikes right now, yet they're still in this 

MR. NIELSEN: They are still in this country; they 
surely are. 


The problem is finding out and identifying where they 
are, and we've been working on tracking systems. 

SENATOR AYALA: But once they are convicted, we're 
talking about a vicious felon here now. This isn't just one of 
those low felonies, when they cop for the three strikes. 

Am I correct? 

MR. NIELSEN: We're talking about all kinds of 
offenders, serious ones and rather minor. 

SENATOR AYALA: An illegal alien can have two strikes 
and he's still in the country? 

MR. NIELSEN: Absolutely, surely. 

There are many answers to that. In our little small 
shop, the Board of Prison Terms, I think, though, fortuitously, 
we've been able to define a number of areas where we could have 
an impact. And I think we are, Senator. And I believe over 
period of time, we're going- to be able to show some. 

In fact, I think today we can show some very 
substantial improvement in the policy of implementing transfers 
to return to their home land. 

In the case of Mexico, for example, it has another 
attendant benefit. Being a family-oriented culture, if you get 
that inmate closer to their family, that is an asset to that 
inmate's reintegration into society -- 

SENATOR AYALA: How many of those illegal aliens are 
now serving in state prison, and what does it cost the state 
government to maintain those folks? 

MR. NIELSEN: My math is not very acute, Senator Ayala, 
but there are some 20,000 foreign-born criminal offenders; about 


18,500 hail from Mexico as country of origin. And at around 
15-20 grand each, you mathematicians that are more adept than I 
can extrapolate. 

SENATOR AYALA: That's a lot of money that we could put 
in our schools; is it not? 

MR. NIELSEN: Well, it would be an answer to 
redirecting some money. I feel that that is a mission. 

We have some ability and authority as an agency to do 
this transfering, and I'm trying — in fact, we commit an awful 
lot of energy. I'd say most of last year, probably an eighth to 
a quarter of my own time was devoted to this very single area. 

I guarantee you, Jim Nielsen doesn't spend that much 
time on something that's a Quixotic quest. I think we're going 
to make a difference. 

CHAIRMAN LOCKYER: Other questions, Members? 

Is there anyone present that had wished to comment 
either for or against the confirmation? 

SENATOR BEVERLY: Move we recommend confirmation. 

CHAIRMAN LOCKYER: We have motion of recommendation. 
If you'll call the roll, please. 

SECRETARY WEBB: Senator Ayala. 


SECRETARY WEBB: Ayala Aye. Senator Lewis. 



Lewis Aye. Senator Petris. 


Petris Aye. Senator Beverly. 



SECRETARY WEBB: Beverly Aye. Senator Lockyer. 


SECRETARY WEBB: Lockyer Aye. Five to zero. 

MR. NIELSEN: Thank you, Mr. Chairman and Members. 

CHAIRMAN LOCKYER: We hope you'll continue your 
conscientious service. 

MR. NIELSEN: I shall. I guarantee it, Senator. 

CHAIRMAN LOCKYER: Thank you very much. 

Okay, we have Mr. Guaderrama. 

MR. GUADERRAMA: Manuel Guaderrama. 

CHAIRMAN LOCKYER: Did you want to begin with those 

MR. GUADERRAMA: Sure, thank you, Mr. Chairman, Members 
of the Committee. 

I've been on the Board of Prison Terms for the past 
four-and-a-half years. Prior to that, I served 30 years with 
the San Diego Police Department. 

Since I've been on the Board, I have worked very 
closely with Chairman Nielsen on the foreign prisoner transfer 
task force. I was also his Vice Chairman for the past two 
years . 

And since I've been on the Board, we've had a dramatic 
increase in the number of hearings that we've conducted. In 
1991, I believe, the figure was somewhere around 1250 to -- 
12,500, I believe it was, to a point now where we're close to 
18,000 hearings a day [sic]. 

I've worked since coming on to the Board to streamline 
the process. And we have -- we were doing two and three 


hearings a day back in 1991. Presently, we are doing four 
hearings a day. In the very near future, we will be doing five 
hearings . 

So, I've enjoyed doing what I've been doing over the 
past four-and-a-half years. I'd like to continue with the new 

CHAIRMAN LOCKYER: Well, you heard a whole bunch of 
questions that I asked Senator Nielsen. I don't know if any of 
those provoked a thought, or how you would respond to a similar 
inquiry. But if there were things that you were thinking about, 
rather than ask ten things, I'll ask you first if there's 
anything that seemed to kind of resonate that you'd care to 
comment' on? If you would, please do. 


I work very closely with him on the foreign prisoner 
task force. I'm very familiar with what was going on during 
that period of time. 

And as his Vice Chairman during the period -- for the 
last two years, I filled in when he was not available or — 
particularly our hearings or our monthly meetings. 

But no, sir. I don't have anything I'd like to comment 

CHAIRMAN LOCKYER: Are there questions from Members? 

We're up against a deadline. Otherwise, I would 
recommend a delay based just on the staff background work, but I 
think we're stuck. 

So, Senator Beverly, if you want to enter your motion. 

SENATOR BEVERLY: Move we recommend confirmation. 


CHAIRMAN LOCKYER: All right. Any other comments? 

Call the roll. 

SECRETARY WEBB: Senator Ayala. 


SECRETARY WEBB: Ayala Aye. Senator Lewis. 


SECRETARY WEBB: Lewis Aye. Senator Petris. 


SECRETARY WEBB: Petris Aye. Senator Beverly. 


SECRETARY WEBB: Beverly Aye. Senator Lockyer. 

CHAIRMAN LOCKYER: Lockyer not voting. 

SECRETARY WEBB: Four to zero. 

CHAIRMAN LOCKYER: Thank you, sir. Good luck. 

MR. GUADERRAMA: Thank you, sir. 

CHAIRMAN LOCKYER: - We have Mr. Hewitt, Superintendent 
of Banks. 

Good afternoon, sir. 

MR. HEWITT: Good afternoon. 

CHAIRMAN LOCKYER: It looks like you could start with a 
brief comment about yourself or the job. 

MR. HEWITT: Yes, I would like to, Mr. Chairman. 


MR. HEWITT: I am Conrad Hewitt, State Superintendent 
of Banks. 

Thank you for providing me the opportunity to appear 
before you today. 

I was appointed in May, 1995, and have been enjoying 


the challenges of the position very much. 

I want to provide you with a brief overview regarding 
my professional background, the State Banking Department, and 
some trends I see in the California banking industry. 

Prior to my appointment, I was a managing partner for 
Northern California for the accounting firm of Ernst and Young. 
I worked in private accounting for 33 years. During that time, 
I audited banks and other financial institutions. I earned a 
degree in finance and banking from the University of Illinois in 

I've done postgraduate work at the Univeristy of 
Southern California, and have attended executive programs at 
Stanford University, the Aspen Institute, and most recently, the 
Kellogg School of Business at Northwestern University. 

The State Banking Department supervises and regulates 
California's 235 state chartered banks with assets of 
approximately $115 billion. The Department also supervises some 
90 percent of the foreign, other nation banks doing business in 
California. This represents another $60 billion in assets. 
Other licensees the Department supervises and regulates include 
trust companies and issuers of payment instruments. 

Some trends I see in the California banking industry, 
the principle trends I see in the California banking industry's 
future are the consolidation of the banks and the application of 

Consolidation is a major economic phenomenon across the 
country in many industries, as we are all aware, and thus, 
banking is no exception. 


I believe that consolidation in the banking industry 
results mainly from economics. Many banks are trying to improve 
their competitiveness. I expect to see more consolidation of 
banks in California and across the country. 

At the same time, I believe that California will 
continue to have a very strong community banking segment. Many 
customers want to be served by their local bank. There are too 
many banks in the United States, and probably too many nonbank 
financial competitors. 

The application of technology to banks of various sizes 
is another driving force behind the banking industry's future. 
Many banks recently returned to profitability as the economy has 
improved in California and are looking at ways to apply 
technology to improve profitability. Improving profitability is 
necessary for many banks in order to be competitive with the 
so-called nonbanks, many of- which are nonregulated as to the 
extent the banks are. 

Also, I believe that technology provides our Department 
an opportunity to make examinations less burdensome to its banks 
with better results as to safety and soundness. As a result, 
banks will be able to spend more time with their customers and 
less time with regulators. Just as important, we will have a 
better examination. 

Now, this concludes my brief statement regarding my 
background, the Department, and some major trends. 

Thank you again for the opportunity for me to appear 
before you today, and I will be pleased to answer your 
questions . 


CHAIRMAN LOCKYER: Senator Petris. 

SENATOR PETRIS: Thank you, Mr. Chairman. 

Can you elaborate on your statement regarding 
consolidation and merger? You expressed apprehension but didn't 
specify what the problem was. 

MR. HEWITT: Yes. There are approximately 10,500 and 
some banks in the United States today. That has been on a 
decline for last five years, approximately six to eight percent 
per year in the U.S. banks. And there's too much capacity in 
banking today compared to other nations in the world, for 
example, Japan, which has only 1,300 banks. We have over 

The allocation of capital is very important to banks 
and necessary, so there will be some consolidation because of 
costs of technology and so forth. 

SENATOR PETRIS: How many banks are there in California 
under your jurisdiction? 

MR. HEWITT: There are 235 domestic banks and 116 
foreign banks, and there are approximately 117 national 
chartered banks. 

SENATOR PETRIS: Foreign banks seem to be multiplying 
over the years, increasing. At least I have the impression 
they're increasing enormously, particularly from Japan. 

MR. HEWITT: Not necessarily true. In the last three 
year in California, we have not chartered any. 

We chartered about 90 percent of the banks in the last 
maybe 10 or 15 years, and we have not seen that trend here in 
California, foreign banks wanting to be chartered in California, 


as opposed, maybe to say, New York. 

SENATOR PETRIS: Do we have reciprocity? I guess 
that's a national jurisdiction, but we allow foreign-owned banks 
to come into California. A lot of them are government-owned, as 
a matter of fact. 

Do we have the same rights extended to our banks to go 
into their countries? 

MR. HEWITT: Yes, we do. 

SENATOR PETRIS: Is it a pretty even reciprocal? 

MR. HEWITT: As far as I can ascertain, yes. 

SENATOR PETRIS: You haven't had any complaints from 
our banks that they're not permitted to go into a certain 
country or a certain part of a country? 

MR. HEWITT: No, I have not, Senator. 

SENATOR PETRIS: In the consolidations that have taken 
place, one of the comments -that I've heard and read is reduction 
in the number of local branches and convenient locations to 
serve the consumers. Have you received complaints of that 

MR. HEWITT: We have received one or two complaints 
along that line. 

There will be some consolidation of branches because 
they're right across the street from one another. 

Although, many of the larger banks in California are 
going into the supermarkets today in lieu of those types of 
branches where it's more convenient. The supermarket is open 24 
hours a day. Some banks have a person there from 8:00 o'clock 
in the morning to 10:00 o'clock at night to serve the customer. 


They can do everything there they can in a branch. It's 
probably safer and more convenient to the customer. 

SENATOR PETRIS: You see that as a positive 

MR. HEWITT: Very definitely. 

SENATOR PETRIS: Does that add to your worries as an 
administrator of the system? 

MR. HEWITT: Not at all, does not. 

CHAIRMAN LOCKYER: While the Senator collects his 
thoughts, maybe I could ask you this. 

In your almost year on the job, does any decision 
you've had to make stand out as the toughest one you did? 

MR. HEWITT: Yes. They're all difficult in one form or 
another, but I would say that probably the most difficult is, it 
went to the timing to close a bank. 

CHAIRMAN LOCKYER: How many did you have to do? 

MR. HEWITT: I've done one. We've had three closures 
this past year, one when I came aboard. 

There have been only six banks closed in the whole 
United States, three of them in California. And when to close 
that bank is a tough decision. 

CHAIRMAN LOCKYER: What was the one during your — 

MR. HEWITT: The Pacific Heritage Bank in Los Angeles. 

SENATOR LEWIS: I wanted to concur with your analysis 
of the benefits of allowing the branching out at supermarkets. 

My wife banks at our local supermarket, and it's 
unbelieveably convenient. 

I just wanted to ask you about the concentration of 


market share in California now. Can you give us an idea, 
perhaps, of the number, or what percentage of depositors, or 
what are the largest two, or three, or five banks? 

MR. HEWITT: I'm a little bit familiar with the Los 
Angeles-Southern California area because of the recent Wells 
Fargo-First Bank system, First Interstate acquisition, merger. 

The three large banks in the Los Angeles area only had 
about 30 percent of the total deposits in that area, meaning 
that other banks had 70 percent. 

So, we don't see the concentration of deposits in any 
particular community by any of the — a bank as such. Banking 
is very competitive in this state. 

SENATOR LEWIS: With the biggest mergers that have 
taken place lately, that didn't affect those numbers in a 
negative fashion as far as you're concerned? 

MR. HEWITT: No, not to any significant degree. 

SENATOR LEWIS: Is there a threshold? Is there some 
kind of a magic number where you — 

MR. HEWITT: Yes. In the interstate banking bill, we 
have a 50 percent threshold of concentration of deposits in the 
state, and there's no one — 

SENATOR LEWIS: How many different institutions? 

MR. HEWITT: There's no one close to that today. 

SENATOR LEWIS: A 50 percent threshold — 

MR. HEWITT: For a consolidation of deposits in this 
state by a single bank. 

SENATOR LEWIS: Oh, single bank. Thank you. 

CHAIRMAN LOCKYER: Other questions? 


Okay, Senator Beverly. 

SENATOR BEVERLY: Nobody wishes to speak? 

CHAIRMAN LOCKYER: Anybody present that wishes to 

SENATOR BEVERLY: Move we recommend confirmation. 

CHAIRMAN LOCKYER: Okay, call the roll, if you will. 

SECRETARY WEBB: Senator Ayala. 


SECRETARY WEBB: Ayala Aye. Senator Lewis. 


SECRETARY WEBB: Lewis Aye. Senator Petris. 


SECRETARY WEBB: Petris Aye. Senator Beverly. 


SECRETARY WEBB: Beverly Aye. Senator Lockyer. 


SECRETARY WEBB: Lockyer Aye. Five to zero. 

CHAIRMAN LOCKYER: Superintendent, I think your 
qualifications and thoughtfulness about the job are quite 
evident. Thank you for your competence, and continued good luck 
and good work. 

MR. HEWITT: Thank you, Mr. Chairman and Members of the 

[Thereupon this portion of the 
Senate Rules Committee hearing was 
terminated at approximately 2:47 P.M.] 
--00O00 — 



I, EVELYN J. MIZAK, a Shorthand Reporter of 
the State of California, do hereby certify: 

That I am a disinterested person herein; that 
the foregoing transcript of the Senate Rules Committee hearing was 
reported verbatim in shorthand by me, Evelyn J. Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel or 
attorney for any of the parties to said hearing, nor in any way 
interested in the outcome of said hearing. 

j IN WITNESS WHEREOF, I have hereunto set my 

hand this ^fj ~~ day of ^y^^^^^r 1996. 

Shorthand Reporter 


Additional copies of this publication may be purchased for $3.00 per copy 
(includes shipping and handling) plus current California sales tax. 

Senate Publications 

1020 N Street, Room B-53 

Sacramento, CA 95814 


Make checks payable to SENATE RULES COMMITTEE. 
Please include Stock Number 294-R when ordering. 






ROOM 113 


MONDAY, MARCH 4, 1996 
3:10 P.M. 

DOClJMrrM-ro n>rpy 

MAR 2 6 1996 



Reported by 




ROOM 113 


MONDAY, MARCH 4, 1996 
3:10 P.M. 

Evelyn J. Mizak 
Shorthand Reporter 










GREG SCHMIDT, Executive Officer 

PAT WEBB, Committee Secretary 

RICK ROLLENS, Consultant on Bill Referrals 

NANCY MICHEL, Consultant on Governor's Appointments 


Pelican Bay State Prison 
Department of Corrections 

JAMES GOMEZ, Director 

California Department of Corrections 


State Personnel Board 




Proceedings 1 

Governor's Appointees; 


Pelican Bay State Prison 

Department of Corrections 1 

Background and Experience 1 

Questions by CHAIRMAN LOCKYER re: 

Tenure as Warden 2 

Problems with Federal Court 2 

Numbers and Types of Staff 4 

Status of Transferring Prisoners from 

SHU to Psychiatric Services Unit 5 

Employment at Different Prisons 5 

Differences in Various Prisons 6 

Change in Department's Policy Regarding 
Predatory Inmates 7 

How Tiered Cell Structure Affects 

Violence 8 

Cell Door Design at Pelican Bay 9 

Chronology of Departmental Assignments 9 

Function of Regional Administrators 10 

Responses by JAMES GOMEZ, Director 

California Department of Corrections 11 

Questions by SENATOR AYALA re: 

Cost and Assignment of Overtime 

at Pelican Bay 12 

Rotation of Officers for Overtime 13 

Double Shifts 14 

Biggest Problems 14 

Hospital on Grounds 14 


1 Problems with Narcotics on Prison Grounds 15 

2 Use of Dogs to Sniff out Drugs 16 

3 Response by MR. GOMEZ 16 

4 Questions by SENATOR PETRIS re: 

3 Inmate Population at Pelican Bay 17 

6 Inmate Population Total Statewide 18 

7 Statements by CHAIRMAN LOCKYER re: 

8 Positive Reports from Judge and 

Special Master 18 

Questions by CHAIRMAN LOCKYER re: 



Ability of Health Services Division to 
li Assist Prison Sites to Comply with Mission .... 19 

12 Impatience of Court Regarding Compliance 20 

13 Amount of Overtime 21 

14 Recruitment of Permanent Intermittent 

Employees 21 

Questions by SENATOR PETRIS re: 



Number of Personnel in Mental Health 

17 Program at Institution 22 

18 Communication with Department of 

Mental Health 2 3 

Need for Mental Health Resources in 

20 Prison System 24 

21 Questions by SENATOR AYALA re: 

22 Comparison of Shooting Incidents in 1995 

to Previous Years 2 5 



Questions by CHAIRMAN LOCKYER re: 

Retrofitting of Cell Doors 26 

Statements of Concern by ASSEMBLYMAN HAUSER 27 

Inadequate Transportation of Released 

Prisoners Back to County of Commitment 27 

28 Need for Department of Establish 

Reliable System of Transport 29 

Questions by CHAIRMAN LOCKYER re: 

Practice Regarding Transport of 

Released Prisoners 30 

Typical Scenario When Prisoners 

Are Released from Custody 31 

Greyhound Bus vs . Department Bus 31 

Ability of Released Prisoners to 

Leave Transport before Reaching 

Final Destination 32 

Determination of Release Dates 33 


Statements by SENATOR AYALA re: 

Agreement with ASSEMBLYMAN HAUSER' s 

Concerns 35 

Questions by SENATOR AYALA re: 

Determination of Location of Release 35 

Questions of MR. GOMEZ by CHAIRMAN LOCKYER re: 

High Overtime Costs 36 

Transportation of Released Prisoners 36 

Questions of MR. GOMEZ by SENATOR LEWIS re: 

Number of Prisoners Released Each Year 38 

Average Length of Incarceration 39 

Motion to Confirm 40 

Committee Action 40 


State Personnel Board 40 

Background and Experience 40 

Questions by CHAIRMAN LOCKYER re: 

Position as Executive Director for CADA 42 

Time Needed for Position on SPB 43 

Ability to Do Both CADA and SPB 43 


Questions by SENATOR PETRIS re: 

Resignation of Predecessors 44 

Response by NANCY MICHEL 44 

4 Questions by CHAIRMAN LOCKYER re: 

5 Intention to Continue Serving on SPB 

after Governor is Gone 45 

DPA's Desire to Expand the Career 

Executive Assignment Program 45 

8 Statements by CHAIRMAN LOCKYER re: 

9 Governor's Nomination of Political 

Appointees for High Positions 47 



Governor ' s Desire to Contract Out 47 

Propensity of Governor's Office to Tell 

12 Appointees How to Vote 48 

13 Questions by CHAIRMAN LOCKYER re: 

14 Specific Feelings about Appointees in 

Exempt Positions in Various Agencies 48 

Any Specific Requests Granted for 

16 CEA Designations 49 

17 Role of SPB in Affirmative Action 49 

18 Change from General Labor Market to 

Relevant Labor Market EC 

Philosophy on Appropriate Role of 

20 Affirmative Action Remedies 50 

21 Personal Service Contracts 51 

22 Questions by SENATOR AYALA re: 

23 Current Backlog of Cases at SPB 52 

24 Motion to Confirm 53 

25 Committee Action 54 

26 Final Action on MR. CAMBRA 54 

Termination of Proceedings 54 

Certificate of Reporter 55 

— 00O00 — 

CHAIRMAN LOCKYER: Let's go on to gubernatorial 
appointees next, Mr. Alvarado. We could do it the other way 
around to accommodate your schedule; why not? Let's start with 
Mr. Cambra. 

Good afternoon, sir. 

MR. CAMBRA: Good afternoon, Senator. Thank you. 

CHAIRMAN LOCKYER: Come on up, Assemblyman. Maybe you 
could open, if you'd care to, Mr. Hauser. 

ASSEMBLYMAN HAUSER: Thank you, Mr. President and 
Members of Rules Committee. I'm here today — 

CHAIRMAN LOCKYER: I'm sorry. I'm just told you're 
opposition. I'm got to make you wait until we get to opposition 
testimony. I beg your pardon. I didn't realize that that was 
your thinking. Would you mind retiring to the first row for a 
few minutes while we bring the supporters forward. 

Mr. Cambra, we will begin. Any general statement that 
you might wish to make, if you would care to just tell us about 
yourself. Do you have a prepared statement or general comments 
you'd like to start with? 

MR. CAMBRA: Yes, Senator, thank you. 

I've been employed with the Department of Corrections a 
little over 25 years. I started as a correctional officer. 
I've been a correctional officer, correctional sergeant, 
lieutenant, correctional counselor. I was in the CPS program. 
I've been a correctional captain, associate warden, chief deputy 
warden at San Quentin Prison, an assistant deputy director up in 

1 headquarters, regional administrator/ and in my present position 

2 at Pelican Bay as the Warden there. 

3 CHAIRMAN LOCKYER: Well, you started this job when? 

4 MR. CAMBRA: March 21st, sir, of 1995. 

5 CHAIRMAN LOCKYER: So, it had been open before you. 

6 How long had it been there? 

7 MR. CAMBRA: Chuck Marshall retired around November, I 

8 believe, of '94. 

9 CHAIRMAN LOCKYER: There's probably a lot of questions 

10 one might want to ask about. I guess we might just start with 

11 your problems with federal court. Tell us about the 

12 controversies associated with the SHU and other things, 

13 psychiatric treatment, whatever, and what you're doing to 

14 ] resolve those problems. 

15 MR. CAMBRA: Well, in the Madrid decision in January of 

16 '95, Judge Henderson made a ruling that there was excessive 

17 force being used at Pelican Bay State Prison, and that our 

18 delivery of medical and mental health services was inadequate, 

19 mental health in particular, in the Security Housing Unit. 

20 Since my arrival at the prison, we've developed a 

21 comprehensive plan on the use of force, and implemented that 

22 plan, trained the staff on that plan. And basically, we've 

23 divided force into two elements, emergency and calculated, in 

24 every case possible. 

25 We set up a calculated use of force situation in which 
2 6 we have a manager present, supervisors present whenever the 

27 ; force is used. We video the force used for review. We review 

28 all uses of force. I review it on weekly basis. We have an 

analysis done on the use of force and the need for the force, 
the level of force. And I think we've really made great strides 
in the area of use of force in that prison. 

With the mission, force — the use of force is 
inevitable, very frankly. Pelican Bay serves the Department 
well, I believe. In my career, I've seen the Department have 
different policies in the area of locking up predatory inmates, 
and in years past, our violence rate in our prison system, with 
a much lower count, was very excessive. We had a high rate of 
homicides, a high rate of serious stabbings in CDC. 

Since the Department developed their procedure to lock 
up predatory inmates like we do now in Security Housing Units 
like Pelican Bay, we've drastically dropped those rates of 
violence inside our prison society as a whole. 

So, Pelican Bay serves a mission, but it serves a very 
difficult mission. The staff have a difficult job. 

It's my belief that if you get out in front of the 
staff and you tell them what you want, they'll give it to you. 
You make it clear what your expectations are, and that's what 
I've found at Pelican Bay in the last 11 months. 

We got in front of the staff. We tried to make the 
policies clear and direct. We have management involvement in 
the implementation of force, and the staff is primarily giving 
us what we've asked for there. I think on the force area, we've 
got a good handle on it. 

On medical and mental health, very frankly, it's a 
bigger challenge. It's a lot more resource driven. The 
exclusion order that came out that excluded mentally ill inmates 

1 from SHU set up a situation where we moved the mentally ill 

2 inmates into a Psych Services Unit. 

3 The Director put forth budget concept proposals to the 

4 i Governor. We've got about an additional 130 staff working at 

5 the prison now, with actually less inmates because the Psych 

6 j Services Unit occupied what previously was Level IV GP at 190 

percent. And with this type of inmate, we have them single 

8 i celled at 100 percent. 

9 But it's very resource intensive — 

10 CHAIRMAN LOCKYER: The 170 are medical staff or 

11 total? 

12 MR. CAMBRA: The 130 was total. There was — in the 

13 | Psych Services Unit itself, it was split about custody about 

14 50-50: about 50 percent clinical, 50 percent custody. And the 

15 reason for that basically is that with this group of inmates, 

16 the reason they were in the Security Housing Unit is, they're 

17 very violent. They're very staff assaultive, very inmate 

18 assaultive. 

19 And so, the behavior they display, even though they're 

20 mentally ill, is extremely challenging. And you need the 

21 custody staff there to be able to bring the inmates out of their 

22 cells safely and take them into the treatment areas so the 

23 clinicians can treat these people for their mental illness and 

24 try, through behavior modification and the program established, 

25 to get a handle on that behavior, if possible, for medication, 
2 6 monitoring, and treatment programs. 

27 And so, we've opened up the PSU Unit, provided 128 

28 cells there for those people, and moved those people — moved 

those people out of the SHU design, which Judge Henderson felt 
that design tended to deteriorate their mental health. 

In the medical arenas, we're looking at — basically 
the big challenges there is good quality assurance programs and 
medical records programs, with a computerized system to share 
information on, you know, elements where we bring the inmates in 
in sick-call situations, follow through, tracking for lab tests, 
and what have you, and good quality assurance is the challenges 
we face in the medical areas. 

Dr. Steinberg's the new CMO up there. I think she's 
making great strides in that area, but we have a ways to go. I 
see it as a, you know, as a six months to a year project to 
really bring about the kind of delivery systems we need in the 
medical area and in the mental health arena. 

CHAIRMAN LOCKYER: Warden, let me make sure I 
understood your question on the court order with respect to 
transferring some number of inmates, a hundred or something, 
from the SHU to the Psychiatric Services Unit. 

MR. CAMBRA: Yes, sir. 

CHAIRMAN LOCKYER: What's the status of that particular 

MR. CAMBRA: We had to move all those inmates out by 
December 31st, Senator, and that was accomplished. 

CHAIRMAN LOCKYER: Okay, that occurred? 

MR. CAMBRA: Yes, sir. 

CHAIRMAN LOCKYER: How many different prisons have you 
worked in the state? 

MR. CAMBRA: I've worked the California Men's Colony, 

1 San Quentin as correctional officer, and then I was an associate 

2 warden and a chief deputy. California Medical Facility as an 

3 interim warden for three months. When we took charge of the 

4 prison, it split the two facilities and turned it over to two 

5 wardens. Sierra Conservation Center, Pelican Bay State Prison, 

6 and Duel Vocational Institution. 

7 CHAIRMAN LOCKYER: Five of them. 

8 MR. CAMBRA: Yes, sir. 

9 CHAIRMAN LOCKYER: Are they different in significant 

10 i ways, as someone who works in those environments, separate from 

11 the fact that you have different job responsibilities in each. 

12 How would you teach us how the culture or environment 

13 : is different in each of these settings? 

14 MR. CAMBRA: CMC was — mainly handled medical care. 

15 It had an acute care hospital there and also mentally ill 

16 i inmates. And we had two "sections of that prison when I was 

17 | there that was really devoted to providing housing for mentally 

18 ill inmates at CMC. 

19 I was there a short time. They used to have a facility 

20 at the west that basically had what — the nickname was the Old 

21 Man's Home. It was really for elderly inmates, and they were 

22 housed in a very minimum setting. 

23 That facility closed down early on in my career, and so 4 

24 basically I was bumped out of a job there, and the Department 

25 transferred me to San Quentin in 1970. 

2 6 San Quentin at that time was very a violent place. The 

27 first six months I worked there, there was several staff 

28 murdered and assaulted, and many more inmates murdered and 

assaulted than the number of staff that were murdered and 

At that time, predatory inmates were on the line. The 
prison gangs were on the line. And that was the policy at the 
time, and that was the outcome, was wholesale violence. 

CHAIRMAN LOCKYER: Has that policy changed? 


CHAIRMAN LOCKYER: In some system-wide way? 

MR. CAMBRA: Right. 

CHAIRMAN LOCKYER: When did that take place? 

MR. CAMBRA: I can't recall the actual year, but I feel 
around the late '70s, the Department finally realized that we 
had to isolate predatory gang members in Security Housing Unit 
settings, lock-up settings, in order to curtail the violence in 
the prison society, the general population society. 

CHAIRMAN LOCKYER: Did that seem to be a more 
successful approach? 

MR. CAMBRA: It's very successful. Our violence rates, 
homicide rates and serious stabbings in the Department, with 
136,000 inmates today, I would guess is probably one-tenth of 
what was with 20,000 inmates at that time, Senator. 

CHAIRMAN LOCKYER: After that change had occurred, so 
you have this new policy of segregating the predators or gang 
activists, once that was established, are there significant 
distinctions in your mind between the work environment under 
that new policy between the different institutions? 

MR. CAMBRA: The environment in some institutions was 
still difficult because we managed that population for awhile in 


1 three -- three-floor cell blocks, and in five-tier cell blocks. 

2 And it was very problematic in those units. The violence rates 

3 in those units were phenomenal. 

4 San Quentin in 1984, I went to San Quentin as a 

5 correctional administrator and took charge of two of the lock-up 

6 units there. And it basically had these inmates housed in 
five-tier cell blocks. They were exercising on yards that had 

8 I up to a hundred inmates on the yard. The violence rate there 

9 was very pronounced in those units. The violence rate in the 

10 general population throughout the state, however, had 

11 drastically reduced. 

12 So, they were serving the mission, but the physical 

13 plant didn't serve the mission basically. It was a poor 

14 physical plant for the type of inmates it served. 

15 CHAIRMAN LOCKYER: How does the five-tiers — I guess I 

16 could understand more readily a large number being in the yard 

17 at the same time, the crowd just facilitating bumping into each 

18 other and problems. 

19 How does the tier affect violence? 

20 MR. CAMBRA: You had open cell fronts, so basically the 

21 inmates could, you know, stab each other through the cell 

22 fronts. 

23 The inmates were escorted in front of the cells. It's 

24 a very narrow tier, so the inmates were escorted in front of the 

25 cells for showers, and for exercising, or for anything, 

2 6 committee, or what have you. And they basically could prey on 

27 each other. 

28 The violence rate, because you have a large cell block 

with over 200 inmates, and they're yelling threats back and 
forth, violence was — the noise level was phenomenal. They can 
reach across and bomb each other; they can gas each other with 
bodily fluids or whatever. It just — it didn't provide the 
type of design to control the behavior that those men display. 
And it was very difficult to manage them in that setting. 

CHAIRMAN LOCKYER: And would fewer tiers make 
difference? You can still stab somebody when they walk by, 
couldn't you? 

MR. CAMBRA: Right, unless they can get out of the way 
from the cell front, or if the cell front is a solid door or 
perferrated door like we have at Pelican Bay. 

CHAIRMAN LOCKYER: So, a different design. 

MR. CAMBRA: Yes, we have a different design at Pelican 
Bay. It's very quiet, very clean. It controls the behavior 
that those men have displayed over the years. 

And very frankly, I saw those large lock-up units as 
pressure cooker-type environment, is the best I can describe it. 

And in Pelican Bay, the pressure's off. I mean, 
they're not going to the yard together, so they don't have the 
peer pressure to continue on with their violence, even though 
some of the inmates still, you know, make knives in Pelican Bay, 
but they have a lot less metal in the cells. So, the design has 
drastically impacted the control of that behavior. 

CHAIRMAN LOCKYER: Before going to Pelican, your 
assignment prior — I'm trying to get these chronologically in 
order — were you at — 


1 MR. CAMBRA: Yes, sir. I was Northern Regional 

2 Administrator in headquarters. 

3 CHAIRMAN LOCKYER: And what does that mean? 

4 MR. CAMBRA: I supervised the eleven prisons in 

5 Northern California at the time, Pelican Bay being one of those. 

6 CHAIRMAN LOCKYER: Prior to that? 

7 MR. CAMBRA: I was the Central Regional Administrator. 


9 MR. CAMBRA: Yes, sir, and basically the same job, only 

10 | managing the prisons in Central California. 

11 CHAIRMAN LOCKYER: Got you. And before that? 

12 MR. CAMBRA: Prior to that, I was for three months 

13 interim Warden at CMF. And then prior to that was Assistant 

14 Deputy Director. And basically in that assignment, it was 

15 similar to Regional Administrator, only at that time the 

16 j division wasn't split on "regional lines. 

17 The prisons were assigned to two of us Assistant 

18 | Deputies under Dave Tristan, who's the Deputy Director of the 

19 Institutions Division. And they're really assigned by missions- 

20 as opposed to geographical locations. 

21 CHAIRMAN LOCKYER: Then prior? 

22 MR. CAMBRA: Prior to that was Chief Deputy Warden at 

23 San Quentin. 

24 CHAIRMAN LOCKYER: I mean, they were assigned by 

25 mission rather than geography before? 

26 MR. CAMBRA: Yes, sir. 

27 CHAIRMAN LOCKYER: Now it's done geographically. 

28 MR. CAMBRA: Yes, sir. 


CHAIRMAN LOCKYER: How about mission? 

MR. CAMBRA: That's geography. 

CHAIRMAN LOCKYER: So, you might have more than one, an 
assistant might have, or a deputy. Which is right, you tell me. 
I can't keep them straight. 

You know what they say: there's just too many people 
in headquarters. There's no money left for the sites because of 
all those people downtown. 

So, if you're Northern Region, you'd have all missions 
under you? They wouldn't be broken up among different deputies 
or assistants? 

MR. CAMBRA: That's correct. We did away with the 
Assistant Deputy Directors, and we replaced them with Regional 
Administrators, and we just split the state into three regions. 

CHAIRMAN LOCKYER: The idea being that if you had 
co-equals doing different missions, as an assistant they would 
kind of bump into each other? It's better to have one person 
responsible who reports up? 

Maybe Mr. Gomez would want to comments on that. 

I guess that's the idea, from what I understand. 

MR. GOMEZ: It got so big with 33 institutions, each 
region having eleven institutions, in the geographic North, 
Central and Southern, and in addition, they have every — all 
responsibility for those eleven institutions, whether it's 
medical, mental health, feeding, you name it. If there's a 
problem, that's the person we look at. 

And so, it has made it easier from an administrative 


1 CHAIRMAN LOCKYER: I keep telling you, you're growing 

2 awful fast. 

3 Other questions? Senator Ayala. 

4 SENATOR AYALA: Yes, I have questions regarding 

5 overtime. 

6 You are one of the highest of all the prisons in 

7 California, with San Quentin being number one. 

8 I understand the way you assign the overtime is to 

9 senior officers, and if they refuse or care not to, then they 

10 offer it to a lower echelon officer, which means it's always 

11 expensive because the senior members are getting paid more. 

12 According to the Department, the overtime cost for 

13 '93-94 was $164.7 million for overtime. 

14 Why is the overtime so high in your prison? What 

15 causes it to go up like that? 

16 MR. CAMBRA: Overtime at Pelican Bay is partially 

17 driven by the mission. 

18 SENATOR AYALA: I'm sorry? 

19 MR. CAMBRA: Partially driven by the mission. When we 

20 take people out to outside medical, outside court — we have a 

21 lot of court — inmates still assault each other. 

22 With our mission, we have the higher inmates that are 

23 more prone to do that. And when we take them out, typically you 

24 need good security on those men to provide the safety for the 

25 community. 

2 6 Madrid has driven overtime. We were faced with court 

27 mandates. We had to actually pull inmates — these inmates, 

28 before we moved them into Psych Services Unit in the month of 


December, we had to start providing services in the SHU Unit, 
which meant we had to develop a pair of officers to pull those 
men out of their cells into the Security Housing Unit, take them 
down into conference rooms, bring clinicians into the conference 
room, and provide group counseling, and what have you. 

SENATOR AYALA: Is this true of all the institutions? 

MR. CAMBRA: No, sir. This was unique to Pelican Bay 
because of the Madrid decision. 

So, basically, last year the overtime costs were around 
five-and-a-half million dollars at Pelican Bay, 5.6 million. 

I think without the Madrid factored out of that, we 
would have brought that down by a million dollars. We aren't 
going to. We're going to be about the same, I believe, at year 
end close this year because of Madrid . 

I think we can make strides in that area. We've hired 
a lot of Pis. Our PI count at the end of this month should be 
up around 50 or 60. And if you have a good base of Pis, you can 
hire the Pis before you have to go to seniority. 

SENATOR AYALA: If you rotated the offering of these 
overtime hours across the board, wouldn't that save you money 
instead of offering to the high paid correctional officers 
first, and normally they take it. So, those on the lower pay 
scale never get a chance to work overtime. 

MR. CAMBRA: Yes, sir, but we have an MOU that governs 
the assignment of overtime by seniority, with the exception Pis. 
I can go to Pis first, and what have you. But after the Pis — 

SENATOR AYALA: Is it through the Correctional 
Officers Union that you have this? 


1 MR. CAMBRA: Yes, sir. 

2 SENATOR AYALA: Are there times when they have to work 

3 two shifts back-to-back, the correctional officers, especially 

4 Under the SHU Unit, they work back-to-back overtime? 

5 MR. CAMBRA: Yes, sir, that's possible. You work a 

6 J double, is what the staff call it. 

7 SENATOR AYALA: What are the special problems that you 

8 j care to share with the Committee, other than crowded 

9 j conditions? Every prison has that, of course. 

10 Is there any other problem that you will be facing even 

11 at greater length? 

12 MR. CAMBRA: The biggest challenge we face at Pelican 

13 Bay is satisfying the court in the relation of delivery of 

14 medical and mental health services, I believe. That's going to 

15 be the biggest challenge when we get into the monitoring phase 

16 of this decision, is to try to satisfy the requirements the 

17 court has laid out. 

18 SENATOR AYALA: You have a hospital on the grounds 

19 there? 

20 MR. CAMBRA: We have an infirmary, and it's going to 

21 roll-over into a CTC, but we also have the Psych Services Unit. 

22 We have an EOP Unit, 64-bed EOP which provides a level of mental 

23 health services to inmates in more of a general population 

24 setting as opposed to a confined setting like lock-up. 

25 CHAIRMAN LOCKYER: Let me interrupt just to suggest 

26 that too many LTPs and QEDs produce NOs. 

27 Go ahead. We're trying to follow. 

28 MR. CAMBRA: Is there a doctor in the house? 


SENATOR AYALA: Psychiatrist. 

MR. CAMBRA: In fact, Dr. Dizmang, my Chief 
Psychiatrist, is here. 

But EPO is Enhanced Out-patient Program. And basically 
what the Department's trying to do is provide mental health 
services in an out-patient setting wherever possible, like in 
the community at large. 

The Department has developed basically three levels. 
You have in-patient, which we use DMH, we contract with DMH for 
in-patient services. We have EOP, Enhanced Out-patient, for 
those inmates that are suffering from a major mental illness 
that needs a pretty high level of treatment, but they don't need 
an in-patient bed, basically. 

And then the third level is what we call C-3MS, which 
is Clinical Case Management. And those are men that basically 
are medication compliant, they're doing fine in the general 
population, but they need to be tracked by mental health 
professionals just to make sure they continue to do that. 

So, the goal of the program, basically, in our 
Department is to try to push these people down into the lowest 
security possible where they can still function and manage 
within our society. 

SENATOR AYALA: Is there a narcotic problem within the 
camp or the grounds there in terms of the inmates greater than 
any other prison we have in California? 

MR. CAMBRA: Yes, sir. Just like in any prison. 

SENATOR AYALA: What are we doing about that? 

MR. CAMBRA: Naturally, we have a security squad that 


1 continually gets information from the line, does searches, 

2 receives information, might have visitors who are bringing in 

3 drugs. 

4 SENATOR AYALA: Can't use dogs anymore. 

5 MR. CAMBRA: We don't use dogs. 

6 SENATOR AYALA: Have you ever used them? 

7 MR. CAMBRA: We brought one dog in because we had a 

8 package problem, and we took them into R and R, and you know, 

9 used them in R and R to screen packages coming in from outside. 

10 And then we tightened up the system of our package delivery, and 

11 we went to one sole vendor that the inmates could order from to 

12 try to tighten the security. 

13 We were getting Radio Shack packages where, what we 

14 found out was that the inmates' families would go into Radio 

15 Shack, and they would actually be given access to the product 

16 before it was packaged and sent in. So, we were getting 

17 narcotics in that way. 

18 Security Housing Unit has pretty good security. The 

19 main way the inmates are getting drugs in there is through 

20 mail. And they actually put black tar heroin in the corners of 

21 the envelope seals. And the staff discover that from time to • 

22 time and do a pretty good job. 

23 SENATOR AYALA: Didn't you have dogs sniffing that at 

24 CIM at one time? 

25 MR. GOMEZ: We had a dog sniffing program for visitors 

26 coming in. They were sniffing the visitors in terms of bringing 

27 narcotics into the institution. 

2 8 SENATOR AYALA: And somebody complained? 


MR. GOMEZ: We lost a court case on that that did not 
allow us to turn them away. 

But we still use dog sniffers occasionally, but we 
don't have the kind of capacity we like. 

Although, I will tell You, Senator, since you ask every 
warden pretty much this question, there is some new technology 
coming out that we believe in the next twelve months to two 
years that will provide us with ioniscopes and other materials, 
which we'll be able to push it up — you'll be able to detect 
narcotics on an individual. We think that's probably twelve 
to ~ 

SENATOR AYALA: At what point? At the entrance to the 
institution, or once it's inside? 

MR. GOMEZ: Anywhere. What we'd be able to do is 
detect whether you have narcotics on you. 

Now, we believe we can use that very judiciously — or 
very aggressively on inmates, very judiciously on visitors. 

I'm hopeful, we're doing tests at two institutions 
right now, that that kind of technological capability, which is 
not invasive, which does not do an x-ray, will give us in the 
future a much better opportunity to prevent drugs from coming 
into the an institution. 

I think technology is going to be a good solution 

SENATOR AYALA: Thank you, Mr. Chairman. 

CHAIRMAN LOCKYER: Senator Petris, did you have some 

SENATOR PETRIS: What's the inmate population at 


1 Pelican Bay? 

2 MR. CAMBRA: We have approximately 1580 beds for 

3 Security Housing Unit, lock-up cases. We have a 200-bed Level I, 

4 minimum security facility, and we have about 1830 beds devoted 

5 to general population Level IV inmates. 

6 SENATOR PETRIS: What's the total statewide, all 

7 prisons? I should have asked Mr. Gomez that. 

8 MR. CAMBRA: They're probably pushing up around 136 or 

9 137,000 inmates at this time, I would guess. 


11 CHAIRMAN LOCKYER: I note that both the Special Master 

12 and the judge say positive things about your administration. 

13 That's, I guess, reassuring, the judge having once been a member 

14 i of Senator Petris's law office. 

15 SENATOR PETRIS: We practiced law together. 

16 CHAIRMAN LOCKYER: The gaffe that I keep hearing is 

17 ; really a Central Office problem more than a site, so this is 

18 probably something you're unwilling to comment on, but I'll ask 

19 the question just so it's noted in the record. 

20 And I'm hopeful that you may have some wisdom that's 

21 derived from having worked both in the Central Office and in 

22 prison settings, so you've kind of been back and forth. Maybe 

23 that gives you some perspective that others don't have that 

24 would do primarily one or the other. 

25 But the question that we hear asked routinely really 

26 has to do with the Health Services Division, or Health Care 

27 Services Division, and whether they've been up to the task of 

28 assisting prison sites like Pelican Bay to fully comply with 


their mission. 

I guess a way to ask that is, who do you see from 
Central Office with respect to your health, both health and 
mental health problems? 

MR. CAMBRA: Central Office sent me Dr. Steinberg as 
the CMO. 

CHAIRMAN LOCKYER: That's on site now? 

MR. CAMBRA: Central Office sent me Dr. Dizmang as my 
Chief Psychiatrist. Without those two individuals, we wouldn't 
have progress going right now. 

CHAIRMAN LOCKYER: How long ago did those ~ 

MR. CAMBRA: Dr. Dizmang' s been there, I think, around 
45 days, Dr. Steinberg longer, about 60 days. 

CHAIRMAN LOCKYER: But still, fairly recent, this year 
or close to it. 

MR. CAMBRA: I think the big key there is that the 
Director can't just produce out of the sky 130 PYs. We needed 
PYs to fix the medical problem. We needed personnel years. We 
needed resources. 

In the force arena, I felt that I was able to bring 
about change by developing a tight policy, where you had 
management intervention, you video taped, you had good review, 
and get out in front of the employees on all the watches and 
tell them what you wanted, basically. You provided the 
training, gave them a copy of the policy individually for each 
officer, and sergeant, and lieutenant. And then, I went around 
to each watch twice and basically let them ask me questions 
about it, because these have gray areas, and that's only way you 


1 can really get across the message. 

2 In the medical and mental health area, that required 

3 resources. And in state government, it takes time to get 

4 resources, basically. 

5 I think that we received resources after being in 

6 headquarters real rapidly, very frankly. I mean, we put 
together a BCP in July; we activated a PSU that had over 100 

8 ; positions December 1. In state government, that's not dragging 

9 j your feet. 

10 I'm not sure that the courts understand that. I think 

11 part of those comments come from that. 

12 CHAIRMAN LOCKYER: Do you think the court is impatient 

13 with the degree of progress? 

14 MR. CAMBRA: Well, I think the court is holding our 

15 feet to the fire to correct the deficiencies. And they cited 

16 the deficiencies. 

17 I think Judge Henderson issued a balanced order, and 

18 when Pelican Bay opened up, there wasn't any doctors at Pelican 

19 Bay. And for us to, you know, open a prison like that, and put- 

20 the inmates in it, not and have any doctors, it's pretty hard to 

21 stand up there and say you have adequate medical care. 

22 CHAIRMAN LOCKYER: How long did it take to get a doc? 

23 MR. CAMBRA: I'm not certain how long it took. 

24 CHAIRMAN LOCKYER: It was before your tenure? 

25 MR. CAMBRA: Yes, it was way before my tenure. 

26 But we've really expanded the number of positions that 

27 we've had due to the, I think, aggressive approach the 

28 Director's taken, very frankly. 


CHAIRMAN LOCKYER: Well, we always want to learn about 
how the system operates under a federal court order, since 
that's probably what we're looking at in the future. 

Director Gomez loves the idea. 

MR. GOMEZ: We're better than that, Senator. As a 
state, we're better than that. 

CHAIRMAN LOCKYER: I could ask you a lot of questions 
about Mr. McKinsey's relationship with the effort, but I think 
you'd be much too diplomatic, which is probably — that's 
probably a compliment. 

I'll for the record say that's what we hear too much 
of, is that Mr. 'Gomez took care of one of his old friends, and 
it's not the right job for him. 

I missed some of the comments that Senator Ayala had 
asked about, namely overtime. When we hear 164 million 
overtime, is that system wide? 

MR. CAMBRA: Yes, sir. 

CHAIRMAN LOCKYER: And then you had a number that was 
specifically Pelican Bay that I missed. 

MR. CAMBRA: Last year it was 5.6 million. 

CHAIRMAN LOCKYER: And that's what you had hoped to 
bring down by a million, but were skeptical because of the 
demands of the court order? 

MR. CAMBRA: That's correct, sir. 

CHAIRMAN LOCKYER: Are there obstacles to getting or 
recruiting, I guess, what we call PIEs, Permanent Intermittent 
Employees? Are those hard to recruit? 

MR. CAMBRA: Up there we're doing pretty well. We 


1 actually have a stable work force. We don't have a high 

2 turnover up there. We have very senior staff for the most part 

3 in comparison to a lot of the prisons in Southern California. 

4 CHAIRMAN LOCKYER: Why would that be? They want to live 

5 in that nice place? 

6 MR. CAMBRA: I think so. 

7 CHAIRMAN LOCKYER: They like rain? 

8 MR. CAMBRA: Maybe they like rain. They'd better like 

9 , rain up there. 

10 CHAIRMAN LOCKYER: If there's no other difference in 

11 ! terms of pay scales or anything like that. 

12 MR. CAMBRA: Actually, the impact on our Pis, the 

13 reason it went down was activation of the PSU so rapidly. So 

14 actually, we rolled several Pis over into permanent positions, 

15 and it takes time for the Academy to catch up and get us back up 

16 ; to 60 or so. 

17 CHAIRMAN LOCKYER: Other questions from Members? Yes, 

18 Senator Petris. 

19 SENATOR PETRIS: You mentioned the Chief Psychiatrist. ■ 

20 How many personnel are there in the mental health part of your 

21 program? 

22 MR. CAMBRA: There's about 41 total positions. There's 

23 8 psychiatrists now, positions that we have. We have 2 state 

24 psychiatrists on staff, a senior and a staff. We have 

25 Dr. Dizmang, who's up from Vacaville as our Chief. Then we 

2 6 contract out for the other psychiatrists, and we're recruiting. 

27 The Director authorized an incentive bonus of about 

28 $15,000 a year, 1200 bucks a month for a psychiatrist if they'll 


come up to Pelican Bay. And right now, I think, through the 
activities of Dr. Dizmang, we're on the verge of recruiting 
some. We have a ways to go. We haven't actually pulled any in, 
but with the incentive bonus, and with a credible Chief 
Psychiatrist, I think we'll start having some success. 

SENATOR PETRIS: Do you have any communication with ouj. 
Department of Mental Health to get some ideas on how to handle 
that? Do they come in work and with you? 

MR. CAMBRA: The doctors, you know, using the incentive 
bonus, and the doctors are the people that are working the 
recruitment effort there. 

I believe that the key there is, if you have credible, 
you know, a credible CMO and a credible Chief Psych that you 
improve your recruitment effort, and we haven't had that in the 

SENATOR PETRIS: You're having difficulty recruiting 
people. I don't suppose that's the easiest job for them to apply 

MR. CAMBRA: Psychiatrists, psychologists were no 
problem. Physicians, surgeons, no problem. Nurses, we have a 
few vacancies, but basically we're doing pretty well. Psych 
techs, we actually recruited from the Department of Mental 
Hygiene several people out of Camarillo and what have you when 
we activated up there, recreational therapists, psych techs and 
what have you. 

But psychiatrists continue to be a problem. 

SENATOR PETRIS: I guess it'll take awhile before you 
know the full impact of the new emphasis on the mental health 


1 problem. 

2 I felt for a long time that we haven't helped your 

3 system get the resources you need for the mental health 

4 problems, and we probably should have had a state policy of 

5 having a more intensive coordination between the Department of 

6 Mental Hygiene and your Department to supply people and help 

7 recruit people. 

8 A lot of people feel that anybody who goes out and 

9 commits a crime has an emotional or mental problem to begin 

10 with. Then you aggravate it by all the other conditions, and 

11 stresses, and so forth. 

12 I remember when I was doing some work in that field, 

13 the experts told us that the percentage of people on the mental 

14 health list always went up during unemployment. You get a big 

15 recession, big jump in mental health problems. That's pretty 

16 mild compared to what happens in a prison. I mean, I would 

17 think it would go up ten times as high. 

18 We really should have a lot more resources from as many 

19 places as we can to help because over-all, if we take care of 

20 that problem, I suppose it would reduce the tensions and 

21 difficulties you have in administering the prison 

22 system. 

23 MR. CAMBRA: I agree with you, Senator, especially in 

24 the end of the spectrum that Pelican Bay has been assigned in 

25 those Security Housing Units, as you receive the inmates that 

26 display the most bizarre and violent behavior. 

27 I think the Department of Corrections has become 

28 probably the primary deliverer of mental health resources for 


the state of California, very frankly. And we historically 
haven't done well in that area, and we do need resources to 
deliver it. 

I believe that over the years, we've had people that 
have displayed this very difficult behavior, ended up basically 
in a custody arena, and the officers are stuck with them. They 
can't do anything other than accept them in those kinds of 
housing units. And I've worked several of them in my career. 
It's very difficult to manage — manage that behavior. 

I think by combining clinical resources with custody is 
the answer, because I believe the clinical resources can bring 
down their behavior. We've had some experience with that at 
Pelican Bay, where we actually went into C-l and C-6, where we 
housed the most challenging folks that had mental illness and 
displayed assaultive behavior. 

When we did start pulling these people out, even in 
waist chains, in group settings, and had clinicians dealing with 
these people as well as dealing with them on the tier, you go in 
and talk to the officers and they'll tell you that that behavior 
reduced, and it made it safer for them. 


SENATOR AYALA: I have one more question, Mr. 

In 1995, the prison had a number of shooting incidents 
in cell extractions. How does that compare to the prior four 
years before 1995? Has it gone up or down? 

MR. CAMBRA: At Pelican Bay, the shooting incidence at 
Pelican Bay has dropped drastically. 


1 SENATOR AYALA: Has what? 

2 MR. CAMBRA: The shooting incidence at my prison in 

3 1995 has dropped drastically. 

4 We had three warning shots fired at Pelican Bay in 

5 1995. Probably the previous year, you're talking 32 incidents 

6 of lethal force use, primarily warning shots with — I think we 
had about three firing for effect. So, the shooting incidents 

8 have drastically been reduced. 

9 SENATOR AYALA: Is that higher or lower than the prior 

10 four years? 

11 MR. CAMBRA: It's much lower now. 

12 CHAIRMAN LOCKYER: I'm unaware of what finally was 

13 done. I assume there was some retrofit money spent on the 

14 problem of the prisoners being able to open the cell doors? 

15 Fill us in on that. 

16 MR. CAMBRA: It was a design flaw. My understanding is, 

17 we won litigation. There was litigation in regard to that. We 

18 came out on the positive end of the litigation and received some 

19 money that it cost us to retrofit the doors in SHU. 

20 CHAIRMAN LOCKYER: So, that's taken care of? 

21 MR. CAMBRA: Yes, sir. 

22 CHAIRMAN LOCKYER: Are there people who wish to say 

23 something on behalf of this confirmation or oppose? We'll take 

24 either side, but let me start with the yes side, if there's 

25 anyone that wants to make a comment. 

26 I guess Mr. Hauser, on the no side, if you want to come 

27 up, sir. 

28 ASSEMBLYMAN HAUSER: We'll try again, Mr. President. 



ASSEMBLYMAN HAUSER: Members of the Committee, first 
of all, I want to make it clear that I'm not here directly 
opposed to the confirmation of Mr. Cambra as Warden at Pelican 
Bay. In fact, we've never met before. 

CHAIRMAN LOCKYER: Mr. Cambra, Assemblyman Hauser. 

ASSEMBLYMAN HAUSER: Good to meet you. 

However, I guess partially as a result of term limits, 
I'm using every forum I can to move forward with an issue that I 
believe is critically important to not only the North Coast of 
California, but to more and more of our facilities. 

A little bit of history. When Pelican Bay was being 
considered, or Slammer by the Sea, or Prison of the Redwoods, or 
whatever Barry wanted to call it, Senator Keene and I felt that 
we were — received a commitment from the Department that 
prisoners being — or inmates being released from Pelican Bay 
would be physically transported back to their counties of 

Soon after the prison was built and the first prisoners 
started coming out, we found that that was not the case. They 
were, in fact, given a bus ticket and some money and sent on 
their way. And basically in my district, through a 300-mile 
district before they reached the first major metropolitan area, 
much less the area where they'd be returned to. 

Twice in the last few years, this Legislature has 
overwhelmingly passed legislation, bipartisan, both Houses, 
which would direct the Department to establish a transportation 
system which would return those inmates to their counties of 


1 commitment, or some modified form of that. 

2 And as Mr. Cambra has noted, some of the most predatory 

3 people are being committed to Pelican Bay, and these are not 

4 exactly folks that you'd like to have out on your street after 

5 they've spent 23 to 24 hours a day in the Security Housing Unit, 

6 | and simply being turned out the front gate, or taken to the bus 

7 depot, either case. 

8 CHAIRMAN LOCKYER: You'd rather they be dropped off in 

9 Senator Petris's — 

10 ASSEMBLYMAN HAUSER: I would rather they would be 

11 returned to the Relocation Center closest to where they would 

12 i have at least some support mechanism, through their probation, 

13 or their parole officer, through their community support. 

14 j Whereas, now they have absolutely no support mechanism. 

15 CHAIRMAN LOCKYER: Assemblyman, you say twice we've 

16 passed something? What was that? 

17 ASSEMBLYMAN HAUSER: Both times the legislation passed; 

18 both times it was vetoed by the Governor. 

19 CHAIRMAN LOCKYER: That would have required the 

20 transport. 

21 ASSEMBLYMAN HAUSER: That would have required the 

22 transportation. 

23 We tried to amend last year's version to resolve every 

24 question that the Department had, as far as the availability of 

25 empty buses, the timing, the type of prisoner that would have to 

26 be — or inmate being released that — would have to go on these 

27 buses, et cetera. 

28 It's still possible. I don't believe it's necessary to 


have a piece of legislation, that the Department could do this 
on their own, and that would be fine with me, even though I've 
put in another bill, of course, to try again. 

But I believe the pressure needs to be kept on the 
Department, whether it's through rejecting a confirmation 
somewhere, or simply bringing it to the Department's continued 
attention, the need to establish some sort of system. 

And it's is not just Pelican Bay. Other Legislators 
from the Redding area, from Calpatria, from the other 
facilities, are now coming to me, and I'm sure to other Members, 
and saying: we've got a problem with our facilities as well, 
especially anywhere where we have the Security Housing Units 
which, by their very nature, hold the worst of the worst. And 
again, people that have no mechanism for transitioning back out 
into society and have created some serious problems. 

So, it's not just a fear that exists within some of our 
communities. We have actually had the shooting of a sheriff's 
deputy in Sonoma County by one of these people, who should never 
have been put out on the street, but because of the terms of his - 
confinement, had to be released. 

We at least should have had some sort of mechanism, in 
his case, San Diego, to try to deal with those issues. 

Anyway, that's my point. Again, I want to make it 
clear that I have — 

CHAIRMAN LOCKYER: It's not directed personally. 

ASSEMBLYMAN HAUSER: It's not directed at this 
particular warden. Again, he may be the most qualified person 


1 I just want to use every opportunity I have, and I will 

2 keep doing it, to bring this issue to the attention of not only 

3 the Legislature, but the Department, to try to get it resolved. 
A CHAIRMAN LOCKYER: What's the clock on this issue? 

5 MS. MICHEL: March 22nd. 

6 ASSEMBLYMAN HAUSER: I understand. 

7 CHAIRMAN LOCKYER: We have what everyone would regard 

8 as an exemplary professional. 

9 I would guess that, while you've wanted to raise the 

10 issue, make sure people are aware of it, you wouldn't want to 

11 interfere with some person's career. 

12 ASSEMBLYMAN HAUSER: Probably not, but I'll be back on 

13 others. 

14 CHAIRMAN LOCKYER: That's fair, too. 

15 I don't know, Warden, if you want to comment on the 

16 : issue, I'll ask Mr. Gomez- to come up for a systemic discussion 

17 of the matter, but if there's anything that's relevant to your 

18 administrative practices. 

19 MR. CAMBRA: I can tell you what I'm doing. 

20 Basically, since January 1, we've paroled approximately 

21 55 inmates out of the Security Housing Unit. I put 25 of those 

22 people on a bus, closer — a prison closer to their county that 

23 they were paroled into. 

24 CHAIRMAN LOCKYER: So, if they are, let's say, 

25 convicted in Alameda County, we don't have a prison, they would 
2 6 come back to Vacaville, or something like that? 

27 MR. CAMBRA: Or San Quentin, yes, sir. 

28 Of the Level IVs, we've released — 


CHAIRMAN LOCKYER: What do they do? They are required 
to just check in at the prison? 

MR. CAMBRA: Well, it varies, depending on the 

CHAIRMAN LOCKYER: How does this work? 

MR. CAMBRA: It's individual case issues. 

CHAIRMAN LOCKYER: What's typical? 

MR. CAMBRA: If you have — we've had some inmates that 
had mental illness, for example. And we contact Paroles. 
Naturally, we network. We have a process of documents and 
information sharing. 

And with a lot of the inmates that are mentally ill, 
we'll transport them to a prison closest to their county of 
parole. And the parole agents will actually pick the person up 
and take them out to out-patient programs within the Parole 

So, it depends on the case factors of the inmates 
involved. The ones I'm talking about, I'll move them — if a 
person's paroling to Alameda, I'll probably put them on a bus, 
say, down to San Quentin. 

CHAIRMAN LOCKYER: So, of the 25, these weren't 
mentally ill, or some were? 

MR. CAMBRA: These were SHU, primarily, lock-up guys. 

ASSEMBLYMAN HAUSER: Excuse me, but you're talking 
about a Corrections Department bus, not Greyhound. 

MR. CAMBRA: Yes, sir. 


MR. CAMBRA: Yes, sir. 


1 ASSEMBLYMAN HAUSER: That's what we're asking for. 

2 CHAIRMAN LOCKYER: That's what you want. So, your 

3 concern is the about the other 30, whatever happened with them? 

4 What did we do with them? 

5 MR. CAMBRA: Those I put on a Greyhound bus. 

6 What we do — Pelican Bay since it opened, we'd go down 
to the bus depot. The staff would wait for the inmate to get on 

8 the bus and the bus to leave. And that's been our standing 

9 ; policy. 

10 CHAIRMAN LOCKYER: So, you know they got on the bus? 

11 MR. CAMBRA: Yes, sir. 

12 CHAIRMAN LOCKYER: Have you had any bus jackings? 

13 MR. CAMBRA: Not that we know of. 

14 CHAIRMAN LOCKYER: What happens to these 30? They can 

15 get off somewhere along the way? 

16 MR. CAMBRA: They can get off if they want to. 

17 CHAIRMAN LOCKYER: How many problems have you had? 

18 MR. CAMBRA: There's been a couple people that's got 

19 off in Humboldt County, or we had one guy get off in Orrick. 

20 : The bus driver through him off, basically, because he raised 

21 heck on his bus, so he threw him off the bus in Orrick, and 

22 there's not much going on in Orrick. 

23 We've developed a system — 

24 CHAIRMAN LOCKYER: He was elected Mayor, I heard. 

25 MR. CAMBRA: We're starting to communicate with local 
2 6 CHP on all those who we do put on the bus. We've developed a 

27 form. We've talked to local CHP; they have the network on the 

28 road, and we let them know who we're putting on the bus. 


CHAIRMAN LOCKYER: Now, if you're hauling 25 somewhere, 
why can't you haul 55 somewhere? Is there some fiscal 

MR. CAMBRA: Well, I don't think that we have enough 
buses, very frankly. I mean, we do not receive a bus a week at 
Pelican Bay. We average a little more than a bus every two 
weeks, but we don't have a bus a week. These people are getting 
out all the time. 

CHAIRMAN LOCKYER: You can't hold them until the bus 
shows up? 

MR. CAMBRA: No, we have to release on the release 
date, yes, sir. 

CHAIRMAN LOCKYER: How do we establish these dates? 
That's the Board of Prison Terms, or the original sentencing 

MR. CAMBRA: Yes, sir, depending on whether they're 
indeterminate or determine sentence. 

ASSEMBLYMAN HAUSER: Excuse me, Senator, but Senator 
Thompson's bill allowed some flexibility in that because of the 
notification process of notifying, that if they don't show up 
within the 48 hours. That's something we didn't have before, 
but it also meant they couldn't be released over a weekend. 

So, there's — that legislation allowed — that passed 
last year — allowed some flexibility in this process. 

CHAIRMAN LOCKYER: That was vetoed? The bill was 

ASSEMBLYMAN HAUSER: No, Senator Thompson's bill. 

CHAIRMAN LOCKYER: This is one that was signed. 


1 ASSEMBLYMAN HAUSER: This one was signed that deals 

2 with notification if they don't show up within the 48-hour 

3 period at their parole officer. 

4 And again, to allow that, it provided some flexibility 

5 to Corrections on the release time. We tried to provide that 

6 same flexibility. 

7 CHAIRMAN LOCKYER: We may not be permitted to override 

8 what the court's date would be; can we? 

9 MR. CAMBRA: 856, I think, is the bill that you're 

10 talking about. What it allowed us to do is, I think it's 

11 inmates committed prior to January, you could move it back to 

12 Friday. If you had a weekend release, you could release on a 

13 Friday. 

14 CHAIRMAN LOCKYER: You can't hold them longer. 

15 MR. CAMBRA: You can't hold them longer. 

16 CHAIRMAN LOCKYER: But you can let them out a couple 

17 days earlier to catch the bus? 

18 MR. CAMBRA: Yes, sir, right. 

19 I think after January, we can actually hold them until 

20 a Monday, and that's the flexibility, that's the window. 

21 CHAIRMAN LOCKYER: That may assist with the bus 

22 availability? 

23 MR. CAMBRA: If the bus happens to roll on a Friday or a 

24 Monday. 

25 Now, typically we get mid-week buses because of the 

2 6 distance. And I have put inmates in a car when a real critical 

27 situation — it costs a lot of money, but I have done that, you 

2 8 know, in a very few cases where they're really people that we're 


worried about. 


SENATOR AYALA: I think that Mr. Hauser's point is well 

I have four prisons in my district and border another 
one. The problem sometimes is that you have to return them to 
where they were convicted. Like in Los Angeles, maybe they 
drove in that day, and they got picked up and convicted three 
months later, but they came from somewhere else. They came from 
Phoenix or somewhere else, so you send them back to L.A. 
They're not really residents of L.A. But that's where you send 
them back if you could. 

So, there's a problem returning people to the place 
where they were incarcerated or they were convicted. They may or 
may not be residents of that area. 

ASSEMBLYMAN HAUSER: All of those being paroled do have 
a specific parole location that they have to report back to a 
parole officer. That's what we're asking. 

SENATOR AYALA: The Board of Prison Terms is the one 
that deals with that, do they not? Don't they decide where 
these people are going to be released to their probation 

MR. CAMBRA: They primarily release back to the county 
of commitment. 

SENATOR AYALA: The county where they were convicted. 

MR. CAMBRA: Yes, sir. 

SENATOR AYALA: Then we go back to what I just said 
earlier. They could be from somewhere else, arrive at the 


1 county the day before they were arrested and convicted, and 

2 that's where they send them back, although they may be from 

3 somewhere else. 

4 MR. CAMBRA: That's true. 

5 CHAIRMAN LOCKYER: Thank you. Assemblyman. 

6 Mr. Gomez, do you want to help to educate us a little 
about this whole problem? And I would, just to keep it in 

8 context, mention that the 165 million in overtime is pretty 

9 substantial, and this may be one of the cost drivers of overtime 

10 which could be significant. 

11 MR. GOMEZ: I don't think it is. I think the 165 is 

12 significant. 

13 We're hiring a significant number of permanent 

14 intermittent employees to try to reduce that amount. 

15 Relative to transportation, we release 90,000 inmates a 

16 year. And what Assemblyman Hauser is proposing could be for all 

17 90,000 to create bus system to take them back to the county. 

18 That's massive. 

19 Now, his individual circumstances in the Security 

20 Housing Unit, I've sat down and discussed with Mr. Cambra, we're 

21 looking at trying to take people and bringing them a month early 

22 out of — or three weeks early out of Security Housing. And as 

23 he said, he's already gotten 50 percent of them in that way. 

24 But we oppose any legislation that mandatorily 

25 requires us to return. We believe, Senator, that as one prison 

26 gets it, every prison will get it. And 90,000 $100 apiece, or 

27 $80 apiece, is very expensive. And it is also, believe it or 

2 8 not, a logistics nightmare in the Department of Corrections. We 


cannot FAX these people from one place to another. 

If we take a bus, when that bus ends up someplace, 
there has to be beds vacant for them to sleep that night. When 
they are brought down to San Quentin, as an example, they don't 
check in. We lock them up. So, when they come to San Quentin, 
there's got to be a bed available for them at San Quentin. 

So, there's lot of logistics on this. Although I do 
understand Assemblyman Hauser's concerns, I think we're trying 
to administratively deal with that. We're going to get better 
at what we're doing, and is trying to bring them out of there 

Now, there are many people in the Department think that 
person should be in SHU until the last day, because that's what 
their sentence is. We're trying to — in working with the 
institution, on those individuals that they're feeling 
comfortable with, bring them out of there early, and for lack of 
a better term, looking at staging them. But we're looking at a 
very few number. We're looking only at Pelican Bay at this 
point, and we're looking at it administratively. 

We are talking $10-15 million, and there's a lot better 
way, in my mind, to spend $10 or 15 million than mandating that 
each person is brought back to the county of commitment by the 
Department of Corrections. 

They are delivered to us by the sheriffs. We do not go 
get them. So, our bus system really is not county-related. It 
is institution-related. 


SENATOR LEWIS: Mr. Gomez, I may have misunderstood 






























you. Would you repeat number again, how many are released every 

MR. GOMEZ: We release about 90,000 inmates a year. 
We're getting 105,000 inmates in. We're releasing 90,000, and 
that is a net plus 15,000. That is on — each month, we're 
releasing over 7500 people, and each month we are receiving — 
we are receiving — about 9,000 individuals. So you can imagine 
the processing of that many people in a period of time. 

So, much of what we do in the prison system is 
jail-like in that those people that are serving short terms — 
three months, six months, nine months, twelve months — if you 
get a three-month person, four people occupy one bed in a year. 
So, there's a tremendous turn over on the lower end of the 
system at the Department of Corrections, which is this 
short-term inmate. 

And it is something that I'll be discussing tomorrow 
with Senator Lockyer in the SB 7 60 conference. I think it's 
tomorrow, relative to that short-term. 

Tremendous turn over. People do not realize that for • 
those 105,000 people that come in, I have to do a TB test, a 
full medical, a psychiatric screening for every single one of 
those people when they enter into our system. And then we have 
to, as they leave, do certain functions also. 

So, there's a tremendous churning effect in that 

The net 15,000 that I talked about, the difference 
between 90,000 being released and 105,000 being received, is the 
lengthening of sentences that has really gone over last 10-12 


years. People are staying with us longer than they used to 
stay, but the rate — velocity in Corrections, very high 

SENATOR LEWIS: I guess I didn't mishear you. The 
90,000 figure really caught me by surprise. 

MR. GOMEZ: I may be off a thousand one way or the 

SENATOR LEWIS: It's just a staggering number. 

Can you give me an inkling, of the 90,000 that were let 
go in the last year, is their average length of incarceration? 

MR. GOMEZ: Twenty- three months. 

SENATOR LEWIS: Thank you. 

CHAIRMAN LOCKYER: That's a median? 

MR. GOMEZ: Yes. 

SENATOR PETRIS: It occurs to me, if they formed an 
alumni association, it would be the biggest in the state. 

MR. GOMEZ: Could be the biggest pack of all time. 
It's huge. The numbers are just huge, just absolutely huge. 

CHAIRMAN LOCKYER: Some suggest that they did, in the 
joint if not before. 

Did you want to add anything else, Mr. Gomez? Always 
nice to see you here. 

MR. GOMEZ: It'll be a pleasure to see you tomorrow. 

CHAIRMAN LOCKYER: Let's see, did you care to close in 
any way, Mr. Cambra? I think we're ready to roll. 

MR. CAMBRA: No, I think you've pretty well covered all 
the issues. 

CHAIRMAN LOCKYER: I'd say we have. 


1 Senator Lewis, did you want to make a motion on this? 

2 SENATOR LEWIS: I'll move confirmation. 

3 CHAIRMAN LOCKYER: Let's call the roll. 

4 SECRETARY WEBB: Senator Ayala. Senator 

5 Lewis. 


7 SECRETARY WEBB: Lewis Aye. Senator Petris. 


9 SECRETARY WEBB: Petris Aye. Senator Beverly. Senator 

10 Lockyer. 


12 SECRETARY WEBB: Lockyer Aye. 

13 CHAIRMAN LOCKYER: Let's leave the roll open, because I 

14 believe it will be unanimous, and that looks better on the 

15 Floor. 

16 Good luck to you y sir. 

17 MR. CAMBRA: Thank you very much, Senators. 

18 CHAIRMAN LOCKYER: Mr. Alvarado is our next appointee, 

19 to chat about the State Personnel Board. 

20 Do you want to come on up. 

21 MR. ALVARADO: Good afternoon, Senator. 

22 CHAIRMAN LOCKYER: Would you care to start with any 

23 kind of statement or comment? 

24 MR. ALVARADO: Thank you. I have a brief, short 

25 opening prepared statement, if that is all right. 


27 MR. ALVARADO: I'm honored to be appointed to become a 

28 member of the State Personnel Board. I hope that I may garner 


the same confidence of yourselves and your colleagues in 
confirming my appointment. 

There are solid reasons I propose as to why I'm 
qualified to sit as a member of the State Personnel Board. 

I believe myself, firstly, to be an independent thinker 
and an individual of integrity. Independence and integrity are 
requisite to any individual entrusted with maintaining a civil 
service system based upon merit such as ours. 

In my opinion, the State Personnel Board is elegantly 
framed to assure neutrality and independence. Neutrality and 
independence and the ability to fairly pass judgement on appeals 
are vital in our roles. 

In my role on the State Personnel Board, I have been 
and pledge to continue to be, if confirmed, neutral and 
independent in my thinking and judgements. 

I have enjoyed a professional career balanced by work 
in the private sector and in the public sector. From my private 
sector perspective, I recognize just how a performance-based 
system can and should operate. 

From my experience in the public sector, and I might 
add, this experience has been at the local, state, and federal 
government levels, I've worked within a system based on complete 

These two, private and public careers, have provided me 
with a special balance in viewing civil service from both a 
management and labor standpoint. 

At the state level, as Undersecretary of State and 
Consumer Services, and confirmed by the Senate as Undersecretary 


1 of Health and Welfare, I have been responsible for agencies of 

2 up to 37,000 employees. The ability to oversee the management 

3 of a dedicated work force of these numbers and complexities is 

4 not, I suggest, an insignificant attribute. 

5 My tenure on the Sacramento County Civil Service 

6 Commission has provided me with additional background and direct 

7 experience of working with the civil service system. The 

8 ' necessity to be impartial and fair at that level was no less 

9 significant than at the State Personnel Board level. 

10 Experience, dedication, neutrality, and independent 

11 judgement, these are important attributes I submit for you to 

12 j consider as you determine my suitability in this confirmation 

13 process. I submit that I bring all these to the position, along 

14 with the desire to continue in some capacity to contribute to 

15 ! the public service. 

16 I am honored to be here today to request your vote of 

17 ! confidence and will do my best to answer any questions which you 

18 might have. 

19 Thank you. 

20 CHAIRMAN LOCKYER: Thank you very much. 

21 You were appointed in May of last year? 

22 MR. ALVARADO: That's correct, Senator, yes. 

23 CHAIRMAN LOCKYER: So, you've been through ten months 

24 or so. 

25 MR. ALVARADO: Exactly. 

26 CHAIRMAN LOCKYER: And also, let's see, now are 

27 managing CADA? 

28 MR. ALVARADO: Right, The Capital Area Development 


Authority, .yes. 

CHAIRMAN LOCKYER: That's been just a few months? 

MR. ALVARADO: That was — I started in December, 
December 11th, Senator, yes. 

CHAIRMAN LOCKYER: Is the State Personnel Board work 
meant to be a job or is it meant to be a part-time thing? Can 
you tell. 

I guess the way to ask that is, how much time does the 
Personnel Board take? 

MR. ALVARADO: Personnel Board, we meet formally a 
day-and-a-half , two days a month. The reading goes beyond that. 
Like you and your staff, I take binders home every night and on 

CHAIRMAN LOCKYER: So, a couple of days, plus the 
outside work that you have to do to prepare. 

MR. ALVARADO: Yes, Senator, I would think that. 

CHAIRMAN LOCKYER: CADA is more full time, I would 

MR. ALVARADO: It is full time, yes. 

CHAIRMAN LOCKYER: There's no burden on doing both? 


CHAIRMAN LOCKYER: Other than as normal Type A 
workaholics that do these things? You can do both? It's not 
unnecessarily burdensome expectation? 

MR. ALVARADO: No, not in my opinion, Senator. 

The issue came up, however, you should be aware, when I 
was being considered for the position of Executive Director of 
CADA. The Board of CADA raised the question, and we talked about 


1 that. So far, probably my wife feels that it's more of a 

2 commitment than I should have made. 

3 CHAIRMAN LOCKYER: So, they thought it was okay? 

4 MR. ALVARADO: They did, yes, Senator. 

5 CHAIRMAN LOCKYER: Questions? Yes, Senator Petris. 

6 SENATOR PETRIS: I'm curious. I meant to bring it up 

7 i with the prior nominee. 

8 CHAIRMAN LOCKYER: We're going to ask you about being a 

9 warden. 

10 MR. ALVARADO: I know nothing, but I learned a lot in 

11 the last hour-and-a-half . 

12 SENATOR PETRIS: I notice that the predecessor in each 

13 j case resigned. Do you know why your predecessor resigned? 

14 MR. ALVARADO: I do not. 

15 MS. MICHEL: That's a term they use. It doesn't 

16 necessarily mean someone has resigned. Their term has expired 

17 and someone else is appointed. It doesn't necessarily mean a 

18 resignation. 

19 SENATOR PETRIS: Well, it says here he replaced Alfred 

20 : Villalobos, who resigned, and his term will end in 2005. 

21 MS. MICHEL: It isn't the way you and I understand 

22 resigned. 

23 SENATOR PETRIS: I see. What does it mean? Pushed out 

24 the window. 

2 5 MS. MICHEL: It means the term ended and they've 

26 appointed somebody different. 

27 CHAIRMAN LOCKYER: These are ten-year appointments? 

28 MR. ALVARADO: They are. 


CHAIRMAN LOCKYER: Why should we agree to anything for 
ten years? I want to think about that a little. 

Are you going to quit when this Governor's gone? 

MR. ALVARADO: I don't intend to, Senator. 

CHAIRMAN LOCKYER: I don't think I want to confirm you 

SENATOR BEVERLY: We asked Bud Carpenter whether he was 
going to ask for a second term. 

CHAIRMAN LOCKYER: What did he say? 

SENATOR BEVERLY: He'd think about it. I think he was 
about 78 at the time. 

CHAIRMAN LOCKYER: I don't think he's 78. He's still 
there, isn't he. 

MR. ALVARADO: Yes, Mr. Carpenter still serves. 

CHAIRMAN LOCKYER: Other questions from Members? I 
have some, but I would defer to anyone else that might want to 

What I wanted to inquire about was the Department of 
Personnel Administration's desire to expand the Career Executive 
Assignment program. At least as I understand the general idea, 
these top managers are, in effect, exempt from civil service 
governance. And DPA has proposed to your Board, I guess in the 
last few months, to just transfer authority to DPA from the 
civil service board, the Personnel Board, the ability to decide 
on whether they should be transformed into CEA positions. 

Do you have any thoughts about that whole matter? Has 
it been brought before the Board yet? 

MR. ALVARADO: It was brought before the Board, or it 


1 was to be brought before our Board at the January, 1996 meeting, 

2 Senator. That letter is signed by some of your colleagues who 

3 came before the Board and asked us to postpone our deliberations 

4 on the issue until March. 

5 We did so, and I believe recently, last week, as a 

6 matter of fact, we received a similar letter requesting that it 
be postponed again in light of some other issues that yourself, 

8 I believe, and some of your colleagues had about the CEA 

9 delegation of authority that DPA is proposing. 

10 CHAIRMAN LOCKYER: Do you have any thoughts about that 

11 general matter? 

12 MR. ALVARADO: My general feeling, Senator, I guess the 

13 big picture is that I think there's a lot of talk about civil 

14 service reform in various ways right now. It's going on all 

15 around us, and probably any system that's been around for a long 

16 time, there are some things that should and could be changed, as 

17 long as merit is not one of them, in my opinion. 

18 I believe that the CEA delegation of authority issue 

19 that has been brought up should probably be reviewed in the 

20 bigger context. I think we're probably going to see other 

21 bills, we're going to see other issues coming up, and that this 

22 particular issue would be best incorporated into an overview of 

23 all those issues coming up regarding civil service. 

24 I find it somewhat difficult, personally anyway, to 

25 isolate it. 

2 6 CHAIRMAN LOCKYER: What if nothing were to happen of a 

27 systemic change? 

28 Here's my problem. We sit here, and we interview 


people like Ward Connerly, who sound fine when they're sitting 
there answering our questions, and four months later are off on 
a track that makes me regret that I ever confirmed him. 

And because of your political history, I have the same 
worry about you, that I'm going to hear something that sounds 
accommodating . 

I think this is a dreadful idea, to have the Governor 
appointing political appointees all the way down to regional 
offices in places like Caltrans, so that the Regional Manager 
for Caltrans would become a political appointee, not a career 
person. I just think it's terrible. And it's typical of Pete 
Wilson ' s administration . 

And you don't have to defend him. Just let me make my 

We've had an expansion which the L.A. Times and others 
have shown some numbers that something like 300 percent during 
the Wilson five years of political appointees at the top. 

He wants to keep trying to contract out. I keep 
suggesting, fine, let's contract out those people at the top, 
not start with the janitor, which is a whole different subject 
that we don't need to get into. 

But that's my reservation. I'm not sure I want to 
confirm anyone, especially anyone that's confirmed for 10 years, 
by a Governor who has philosophical goals different than mine 
unless I think there's some persuasive evidence that they're 
balanced, that they're not just going to take orders from the 
people that are sent over by the administration to these boards, 
like they've done consistently in Air Resources, in Board of 


1 Forestry and other places. 

2 They tell their appointees how to vote. It's obnoxious 

3 and offensive, and the people do it. They vote the way the 

4 Governor's political people tell them to vote. 

5 Now, why should we confirm anyone like that? I fail to 

6 see any reason why, frankly. 

And so, I want to know what are your specific feelings 

8 about having appointees that are exempt in positions down to 

9 regional department heads, regional directors of Caltrans, 

10 Social Services, and other executive agencies? 

11 MR. ALVARADO: My personal feeling, Senator, is that 

12 , there's a statutory definition of what a CEA assignment is. I 

13 believe that predates — I think it came out in '63 or so. 

14 I don't believe we should mess with that. And I think 

15 that that definition encompasses very high-level political — 

16 very high policy level individuals. 

17 I think that there should be some — I think beyond 

18 that, that's not what a CEA assignment should be. And your 

19 example of broadening it, I don't think it should be done unless 

20 we would look at whole civil service system and realize that 

21 that's the best way to reform the system, and I personally don't 

22 think it is. 

23 But I respect your comments. 

24 CHAIRMAN LOCKYER: This comprehensive review of civil 

25 service seems to be germinating. I understand there's an 

2 6 administration proposal somewhere that we haven't seen, and 

27 there is Little Hoover's report, and a number of other 

28 discussions. 


MR. ALVARADO: Constitutional Revision Commission, I 

CHAIRMAN LOCKYER: Yes, they've talked about it. 

MR. ALVARADO: There is a lot coming together. I think 
it's difficult to isolate them. Senator. 

CHAIRMAN LOCKYER: Have you, in your ten months or 
whatever it's been now — 

MR. ALVARADO: Just about ten months. 

CHAIRMAN LOCKYER: Have there been requests in that 
were specific that were granted for CEA designation? Not just 
sort of blanket authority to delegate, but specific requests? 

MR. ALVARADO: Not to my recollection, Senator, there 
have not. 

CHAIRMAN LOCKYER: Other questions. 

One of the responsibilities, I guess, of the SPA seems 
to have something to do with affirmative action. Could you tell 
us what that role or responsibility is? 

MR. ALVARADO: Sure, yes, Senator. 

I think as it goes to everything we do, I think that 
we're there to uphold the law, whatever that law may be. If the 
laws on affirmative action were changed by the Legislature or 
the voters, we as an independent body, I believe, have to uphold 
that particular law, whatever it may be. 

In terms of affirmative action, I think it goes more to 
what we do in our relevant workforce activities. And the Supreme 
Court has basically defined what the relevant workforce is, and 
the State Personnel Board enforces that. 

My recollection is that last year, there was about 97 


1 percent compliance in state departments and agencies with the 

2 relevant workforce. That's not bad. 

3 And in those instances where departments and agencies 

4 are not in full compliance/ we're doing everything we can to 

5 help them manage their recruitment efforts so that we do get a 

6 good relevant workforce from which the state can select 

7 qualified people based on a merit principle. 

8 CHAIRMAN LOCKYER: Was there a split board at all on 

9 the change from general labor market to relevant labor market? 

10 I assume that was discussed and debated before the 

11 full Board? 

12 MR. ALVARADO: It was, Senator, but I don't recall 

13 exactly. I don't recall what the vote was. 

14 CHAIRMAN LOCKYER: Do you have any general philosophy 

15 you'd like to let us know about of any appropriate role of 

16 affirmative action remedies in state hiring and contracting? 

17 MR. ALVARADO: In state contracting, Senator? 

18 CHAIRMAN LOCKYER: Contracting may not be under your 

19 review but hiring certainly. 

20 MR. ALVARADO: Hiring. 

21 I believe philosophically that it's the role of a fair 

22 civil service system to make sure that we recruit as broadly as 

23 we can. And that means to minorities; it means to the 

24 workforce. And that we identify a labor force that, again, 

25 that's relevant to the job that is being recruited for, in the 
2 6 geographic area where the job is going to be, and that we do 

27 everything we possibly can to make sure we're reaching out to 

28 try and recruit good individuals, no matter what their ethic 


background or race might be. 

And I think that's the key to getting the state 
taxpayers really the best possible pool of employees. And if we 
can do that, then we can protect a civil service system that's 
based on that kind of merit through the whole process, whether 
they come before the State Personnel Board on appeals, whatever 
it might be, as long as we can keep running full circle back to 
the issue of merit and fairness. 

Generally, that's my philosophy. And trying to 
exercise that in an independent manner is something that I think 
is vital to anyone who's on the State Personnel Board. 

And if that member should ever be in conflict with the 
laws, then I think it's incumbent upon that member to step down 
and no longer serve on that kind of body. 

CHAIRMAN LOCKYER: I guess there seems to be an issue 
also now with respect to personal services contracts, that I 
believe some have to be approved by the Personnel Board, and 
others are just outside of your purview. 

Does that ring any bell as to any role you might have 
with personal service contracts with private outside firms? In 
effect, they wouldn't be state employees; they'd be contracting 

Has that come before you during your time? 

MR. ALVARADO: That has not, Senator. 

CHAIRMAN LOCKYER: I guess our only questions there 
would be whether you have any convictions about those matters. 
If you want to talk about it, great. 

MR. ALVARADO: I'd be happy to share my thoughts on 


1 it. 

2 I don't think contracting out of personal services 

3 contracts, per say, are bad or good. Again, just so long as we 

4 protect the civil service system, whatever that might be at that 

5 point in time, we protect it and we uphold Article VII in the 

6 ! Constitution that says we'll have a fair and unbiased civil 

| service system, then it is incumbent upon us to make sure that 

8 we do that. 

9 If contracting out can be done, and it's more efficient 

10 for the state and the taxpayers, and it doesn't harm civil 

11 j service as we know it, then we should do it. 

12 As long as we compare apples with apples when we're 

13 making the comparisons between contracting out and civil 

14 service. 

15 CHAIRMAN LOCKYER: I guess there have been number of 

16 studies. The one that's been most controversial around here has 

17 been Caltrans contracting out. And everyone has their own 

18 study. 

19 The one I most recently saw was Alan Post's, which 

20 suggests it's more expensive to contract out in Caltrans than it 

21 is to keep them internal. But there's five or six different 

22 studies banging around on that issue. 

23 Senator Ayala. 

24 SENATOR AYALA: Mr. Alvarado, how large is the backlog 

25 of cases for appeal or review at the State Personnel Board at 

26 the moment? 

27 MR. ALVARADO: We're actually doing very well, 

28 Senator. We have halved the number — the length of time it 


takes to get through a case. 

My understanding in talking to the staff just last 
week, we're almost getting — we're starting to get complaints 
from people saying we're moving too quickly. 

All of our cases are within the statutory time limit 
right now, is my understanding, Senator. 

SENATOR AYALA: So, you're current with that, and you 
don't have a backlog? 

MR. ALVARADO: Right. We've done some things. We've 
looked at our minor adverse actions, and we're dealing with 
those in a different way so we can get those through faster. 

I think, especially in the last eight or nine months — 
and I have to hand that basically to the staff and our new 
Executive Director, who on a day-to-day basis with his 
attorneys, is really making the process a lot more expedient. 

SENATOR AYALA: Thank you. 

CHAIRMAN LOCKYER: Well, as a fellow alumni of the 
Monterey Institute, I may have some burden also to defend you. 

MR. ALVARADO: That's a rarity. We're very few. We 
aren't like that prison population forming their alumni. We are 
very few, Senator. 

CHAIRMAN LOCKYER: You're right. It was only a 
semester for me while I was serving time after being kicked out 
of UC for being at Sproul Hall and being a bad boy. Free speech 
movement, some time before you were at Monterey. 

Other questions. 

Anyone here who cares to comment? 

SENATOR BEVERLY: Move we recommend confirmation. 


1 CHAIRMAN LOCKYER: Call the roll. 

2 SECRETARY WEBB: Senator Ayala. 


4 SECRETARY WEBB: Ayala Aye. Senator Lewis. 


6 SECRETARY WEBB: Lewis Aye. Senator Petris. 


8 SECRETARY WEBB: Petris Aye. Senator Beverly. 


10 SECRETARY WEBB: Beverly Aye. Senator Lockyer. 


12 SECRETARY WEBB: Lockyer Aye. Five to zero. 

13 CHAIRMAN LOCKYER: Good luck. 

14 MR. ALVARADO: Thank you very much, Senators. 

15 CHAIRMAN LOCKYER: We have a call on Mr. Cambra, the 

16 ; Warden. If you want to call the absentees, those who were not 

17 present. 

18 SECRETARY WEBB: Senator Ayala? 


20 SECRETARY WEBB: Ayala Aye. Senator Beverly? 


22 SECRETARY WEBB: Beverly Aye, five to zero. 

23 [Thereupon this portion of the 

24 Senate Rules Committee hearing was 

25 terminated at approximately 4:35 P.M.] 
2 6 — ooOoo — 



I, EVELYN J. MIZAK, a Shorthand Reporter of 
the State of California, do hereby certify: 

That I am a disinterested person herein; that 
the foregoing transcript of the Senate Rules Committee hearing was 
reported verbatim in shorthand by me, Evelyn J. Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel or 
attorney for any of the parties to said hearing, nor in any way 
interested in the outcome of said hearing. 

mj IN WITNESS WHEREOF, I have hereunto set my 

hand this A day of 9°^^ ^^ 




Shorthand Reporter 


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